Lucas v. Ballard et al
Filing
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MEMORANDUM OPINION AND ORDER The court OVERRULES the plaintiff's 7 Objections, ADOPTS the 6 Proposed Findings and Recommendation in full, and DISMISSES with prejudice the plaintiff's 1 Complaint for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A. Signed by Judge Joseph R. Goodwin on 10/19/2018. (cc: counsel of record; any unrepresented party; Magistrate Judge) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JAMES LUCAS,
Plaintiff,
v.
CIVIL ACTION NO. 2:17-cv-03894
DAVID BALLARD, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
I.
Introduction
This action was referred to United States Magistrate Judge Dwane L. Tinsley
for submission of proposed findings of fact and recommendation for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B). On August 30, 2018, Judge Tinsley submitted
his Proposed Findings and Recommendation [ECF No. 6] (“PF&R”), recommending
the court dismiss this matter for failure to state a claim upon which relief can be
granted. On September 10, 2018, the plaintiff timely submitted his objections to the
PF&R [ECF No. 7]. For the following reasons, the court OVERRULES the plaintiff’s
objections [ECF No. 7], ADOPTS the PF&R [ECF No. 6] in full, and DISMISSES with
prejudice the plaintiff’s Complaint [ECF No. 1] for failure to state a claim upon which
relief can be granted, pursuant to 28 U.S.C. § 1915A.
II.
Procedural History
Because the plaintiff makes no specific objections to the PF&R’s procedural
history, the court ADOPTS the procedural history as set forth in the PF&R in full.
III.
Legal Standard
A district court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(C). This court is not, however, required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate judge
as to those portions of the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this court need not
conduct a de novo review when a party “makes general and conclusory objections that
do not direct the Court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When
reviewing portions of the report de novo, this court will consider the fact that the
plaintiff is acting pro se, and his pleadings will be accorded liberal construction.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295
(4th Cir. 1978).
IV.
Discussion
The plaintiff has submitted two discernable objections to the Magistrate
Judge’s PF&R. I will address each objection in turn.
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a. Fifth Amendment Claim
The plaintiff alleged in his Complaint that the defendants violated his Fifth
Amendment right against self-incrimination by banning him from utilizing the band
room or participating in the band program for not being IRPP1 compliant, when he
could not become IRPP compliant without taking a class that required him to take
responsibility for his crimes. In recommending the court find that the plaintiff has
not alleged a plausible violation of his Fifth Amendment right, the Magistrate Judge
relied on McKune v. Lile, 536 U.S. 24 (2002). In McKune, the Supreme Court held
that prison officials do not violate the Fifth Amendment by imposing adverse
consequences on prisoners who refuse to participate in programs that require them
to admit their guilt. Id. at 48. In his objections, the plaintiff argues that McKune is
inapplicable to this case because a band instructor, not a jail administrator, initially
banned the plaintiff from using the band room. The court finds this minor distinction
of no consequence.
The plaintiff’s own objections demonstrate that there are no significant
differences between this case and McKune. The plaintiff states that jail
administrators were involved in banning him from the band room and band program.
Specifically, the plaintiff notes that the administrators “back[ed]” the band
instructor. Moreover, McKune’s holding did not rest on which administrator or
employee initially imposed adverse consequences on the prisoner but instead rested
“IRPP” stands for “Individual Reentry Program Plan.” See Longwell v. Ballard, No. 11-0912, 2012
WL 5232243, at *1 (W. Va. Oct. 19, 2012).
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on the nature of the adverse consequences. See id. at 52 (O’Connor, J., concurring)
(emphasizing that the resulting adverse consequences were “minor”).
Notably, the plaintiff in this case lost substantially fewer and less significant
privileges than the inmate in McKune. In McKune, by refusing to participate in the
rehabilitative program, the inmate lost his visitation rights, earnings, and work
opportunities and was moved from a two-person cell to a four-person cell. Id. at 31.
Here, the plaintiff has merely lost band room privileges. As such, the plaintiff has not
alleged a plausible violation of his Fifth Amendment right against self-incrimination.
The objection is overruled.
b. Proposed Amendment
On June 19, 2018, the plaintiff filed a proposed amendment to his Complaint
in which he attempts to challenge a new policy concerning the housing of nonviolent
level 3 classified inmates who have refused to participate in rehabilitation programs
or classes with higher security classification inmates. The plaintiff claims that this is
punishment for the refusal to complete the subject classes. The Magistrate Judge
recommended the court find that the plaintiff has not demonstrated any actual injury
from this policy and that an amendment would therefore be futile. The plaintiff
objects to the Magistrate Judge’s “suggest[ion]” that moving level 3 inmates into
dorms with higher security classification inmates is de minimus harm.
The plaintiff’s reading of the PF&R is simply incorrect. The Magistrate Judge
never referred to the moving of inmates as de minimus harm. Judge Tinsley
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recommended the court find that the plaintiff did not have standing to challenge the
new policy because his injury is only speculative. “The plaintiff must show that he
has sustained or is immediately in danger of sustaining some direct injury as the
result of the challenged . . . conduct and the injury or threat of injury must be both
real and immediate, not conjectural or hypothetical.” City of L.A. v. Lyons, 461 U.S.
95, 101–02 (1983). The court finds the plaintiff has not demonstrated any actual
injury from the policy. Thus, he has not stated a plausible claim for relief, and his
proposed amendment would be futile. The objection is overruled.
V.
Conclusion
The court OVERRULES the plaintiff’s objections [ECF No. 7], ADOPTS the
PF&R [ECF No. 6] in full, and DISMISSES with prejudice the plaintiff’s Complaint
[ECF No. 1] for failure to state a claim upon which relief can be granted, pursuant to
28 U.S.C. § 1915A.
The court DIRECTS the Clerk to send a copy of this Memorandum Opinion
and Order to counsel of record, any unrepresented party, and the Magistrate Judge.
ENTER:
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October 19, 2018
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