Cunningham v. Drew et al

Filing 102

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 67 Motion for Summary Judgment; denying as moot 101 Motion for Summary Judgment. Signed by Honorable Richard M Gergel on 12/23/2013.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Eugene Jerome Cunningham, #02433-135, )
No.9: 12-cv-2596-RMG

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Plaintiff,
v.

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)
)
ORDER

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Darlene Drew, Warden, FCI Bennettsville )
and G. Del Rei, Captain, FCI Bennettsville, )
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Defendants.

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This matter is before the Court on the Report and Recommendation ("R&R") of the Magistrate
Judge recommending this Court grant Defendants' motion for summary judgment and that this case be
dismissed. (Dkt. No. 84). For the reasons set forth below, the Court agrees with and adopts the R&R
as the order of the Court.
Background

Plaintiff Eugene Jerome Cunningham is a medium security inmate serving a life sentence who
is currently incarcerated at the Federal Correctional Institution, Bennettsville ("FCI Bennettsville").
Plaintiff brings this action pro se pursuant to Bivens v. Six Unknown Named Agents ofFederal Bureau
of Narcotics, 403 U.S. 388 (1971), alleging violations of his constitutional rights by the named
Defendants and seeking monetary damages. (Dkt. No.1). Specifically, Plaintiff alleges that he has
been "denied jobs in the commissary, recreation and other jobs [throughout] the Institution," while
other inmates with the same custody level are able to hold these jobs. (Dkt. No. 21). Plaintiff claims
that his equal protection rights are being violated by Defendants because he is similarly situated with
these other medium security inmates.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule

73.02(B)(2)(e) DSC, this matter was automatically referred to a United States Magistrate Judge for
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pretrial proceedings.
Defendants filed an amended motion for summary judgment on August 1, 2013. (Dkt. No.
67).1 After receiving an extension of time to file his response, Plaintiff filed a memorandum in
opposition to summary judgment. (Dkt. No. 82). On October 29, 2013, the Magistrate Judge issued
the present R&R recommending the Court grant Defendants' motion for summary judgment. (Dkt.
No. 84). Plaintiff then filed objections to the R&R (Dkt. No. 100) and a cross-motion for summary
judgment (Dkt. No. 101).
Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight, and the responsibility for making a final determination remains with this
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo
determination of those portions of the R&R to which specific objection is made. Additionally, the
Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or
recommit the matter to the magistrate judge with instructions." Id.
Discussion
After review of the record, the R&R, and Plaintiff's objections, the Court finds that the
Magistrate Judge applied sound legal principles to the facts of this case and therefore agrees with and
wholly adopts the R&R as the order of the Court.
As noted by the Magistrate Judge, prison inmates have no federally protected right or interest

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Although Defendants' motion is titled as one for "summary judgment," the memorandum in support cites only to Rules

12(b)(1) and 12(b)(6). However, the record is clear that both parties have conducted discovery and each cite to materials
outside the pleadings in support of their motions and responses. The Magistrate Judge therefore appropriately treated
Defendants' motion as one under Rule 56 of the Federal Rules of Civil Procedure.

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in any job while incarcerated. See James v. Jackson, No. 9:08-144-TLW, 2009 WL 291162, at *8
(D.S.C. Feb. 4, 2009) ("[I]nmates do not have a liberty interest derived from the due process clause,
nor do they have a property interest, in a specific job or any job at all while incarcerated"). However,
even absent this right or property interest, one may have an equal protection claim if they are singled
out for arbitrary and irrational treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000).
In such an equal protection claim, to survive summary judgment, a plaintiff must first have
evidence to demonstrate that "he has been treated differently from others with whom he is similarly
situated and that the unequal treatment was the result of intentional or purposeful discrimination," and,
if so, the court must then determine whether the disparate treatment is "reasonably related to any
legitimate penological interest." Veney v. Wyche, 293 F.3d 726, 730-32 (4th Cir. 2002).
Here, Plaintiff has not presented any evidence that he has been treated differently than other
similarly situated prisoners. Documents presented by Plaintiff and Defendants show that the job
placement system is implemented on a prison-wide basis and Plaintiff does not argue that fact.
Instead, Plaintiff argues that he is entitled to be treated the same as other medium security inmates who
are not serving life sentences, which is contrary to prison policy. There is no constitutional right to be
distinguished in this way. See Slezak v. Evatt, 21 F.3d 590,594 (4th Cir. 1994) (Constitution vests no
liberty interest in a particular custody status so long as the degree of confinement is within the
sentence imposed).
The evidence presented shows that Plaintiff is a medium security inmate serving a life
sentence, and is being treated in the same manner as all other medium security inmates at FCI
Bennettsville who are serving life sentences.

Because Plaintiff has failed to show any evidence

showing that he is treated differently than other similarly situated inmates, his equal protection claim
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fails. Furthermore, even if this showing had been satisfied, the prison job placement policy in question
was implemented for security purposes, a legitimate penological interest, and had nothing to do with
Plaintiff individually. Finally, Plaintiffs own evidence shows that his classification is in compliance
with prison policies and procedures and affects all prisoners of medium security who are serving life
sentences. Therefore, Plaintiff s claim is without merit.
Plaintiffs objections do not alter this analysis. Plaintiff appears to make two basic objections
to the R&R. First, Plaintiff objects that the FCI Bennettsville policy which limits the jobs that can be
assigned to inmates with a history of escape or who are serving life sentences (See Dkt. No. 66-3, 66­
4) is contrary to and violates another prison policy, § 551.90, which dictates that "Bureau staff shall
not discriminate against inmates on the basis of race, religion, national origin, sex, disability, or
political belief [when] making ... administrative decisions and providing access to work, housing and
programs." (Dkt. No. 101-8). Clearly, the FCI Bennettsville work assignment policy complained of
does not violate this directive because it makes no distinction on the basis of race, religion, national
origin, sex, disability, or political belief. Plaintiffs second argument is related to the first and also
fails. He complains that the FCI Bennettsville work assignment policy is "not authorized" because it
is in violation of § 551.90.

As explained above, the policies do not conflict and therefore this

argument also fails.
Conclusion

For the reasons stated above, this Court adopts the Magistrate Judge's R&R in full. (Dkt. No.
84).

Accordingly, Defendants' motion for summary judgment (Dkt. No. 67) is GRANTED and

Plaintiff's cross-motion for summary judgment (Dkt. No. 101) is DENIED as moot.

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AND IT IS SO ORDERED.

Richard Mark Ge
United States District Court Judge
December .92013
Charleston, South Carolina

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