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Frilando v. Johnson

United States District Court, D. South Carolina, Florence Division

September 2, 2014

JOHN A. FRILANDO, Plaintiff,


THOMAS E. ROGERS, III, Magistrate Judge.


In this action, Plaintiff, who is proceeding pro se, alleges that Defendant Fredrick Granger[1] stole personal items from him instead of putting them into inventory and that the remaining Defendants have tried to cover-up this theft. Presently before the court is Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment (Document # 58). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison , 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in dismissal of his complaint. After requesting and receiving an extension of time, Plaintiff filed a timely response with exhibits. Because both Defendants and Plaintiff have submitted exhibits with respect to this motion, the court will treat it as a motion for summary judgment pursuant to Fed.R.Civ.P. 56. See Laughlin v. Metropolitan Washington Airports Authority , 149 F.3d 253, 260-61 (4th Cir. 1998). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. This Report and Recommendation is entered for review by the district judge.


At all times relevant to this claim, Plaintiff was being housed at the Federal Correction Institution (FCI) Williamsburg in Salters, South Carolina. Plaintiff avers he was involved in a physical altercation on June 11, 2012, and sustained injuries that required medical attention. Pl. Aff. ¶ 1 (attached to Complaint). He was taken off the FCI Williamsburg campus by Defendant Fredrick Granger, a corrections officer, for medical treatment. Pl. Aff. ¶ 1. Plaintiff avers Granger removed from Plaintiff's possession an 18k gold necklace, an 18k gold religious medallion, both gifts from his deceased mother, and a pair of new balance shoes. Pl. Aff. ¶ 1. Plaintiff witnessed Granger put his shoes on the ground and the necklace and medallion in his pocket. Pl. Aff. ¶ 1. Granger assured Plaintiff that his possessions were safe. Pl. Aff. ¶ 3. Plaintiff avers that Granger did not follow standard procedure, which provides that when an inmate is taken out of the institution, his property will remain at the institution until the inmate returns. Pl. Aff. ¶ 2. Defendants SIS Lieutenant J. Patterson and Lieutenant F. Hill were present when Granger removed the items. Pl. Aff. ¶ 2.

Plaintiff avers that Granger had the necklace and medallion in his front pocket while in the ambulance, in the hospital, and on the return trip back to FCI Williamsburg. Pl. Aff. ¶ 4. Upon arrival at FCI Williamsburg, Plaintiff witnessed Granger walk over to a white pick up truck, open the door, and put something inside. Pl. Aff. ¶ 4. Granger never returned Plaintiff's property, nor did he fill out the proper paperwork. Pl. Aff. ¶ 5. Plaintiff avers that Granger stole his necklace and medallion and left his shoes behind when he set them on the ground.

Plaintiff asserts that he has filed numerous inmate requests, a tort claim, and administrative remedies to no avail. Pl. Aff. ¶ 6.[2] He asserts that Defendant Timothy Johnson, Acting Warden at FCI Williamsburg, knew that a theft was committed by one of his corrections officers and "became the ring leader in the cover-up of the theft of Plaintiff's personal property." Pl. Aff. ¶ 6. Plaintiff states that the other Defendants have attempted to cover-up this theft as well. Pl. Aff. ¶ 6.

Defendants admit that Plaintiff exhausted his administrative remedies with respect to these claims.[3]


The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex , 477 U.S. at 322. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston , 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am. , 977 F.2d 872, 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp. , 12 F.3d 1310, 1316 (4th Cir. 1993).

To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex , 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc. , 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood , 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.


Challenges to a federal inmate's conditions of confinement generally fall under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Supreme Court established a cause of action against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. Harlow v. Fitzgerald , 457 U.S. 800, 814-820, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. Id .; Osabutey v. Welch , 857 F.2d 220, 221-223 (4th Cir.1988).

In his complaint, Plaintiff makes no reference to any constitutional violation. Rather, he alleges that Defendants violated BOP Program Statement 3420.08, 3420.09 and 5 CFR § 2635, Standards of Ethical Conduct for Employees of the Executive Branch. However, policy violations do not rise to the level of constitutional violations. U.S. v. ...

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