United States District Court, D. South Carolina
Eugene D. Patterson, Jr., Plaintiff,
Michael McCall, Brian Durant, Bruce Oberman, Ass. Warden James Dean, Mr. Elbert Pearson, and Sgt. Long, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
a pro se prisoner, filed this 42 U.S.C. Â§ 1983 action
alleging that Defendants violated his constitutional rights.
This matter is before the court on Defendants' Motion for
Summary Judgment, filed on July 1, 2015. ECF No. 53. Pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975) the court advised Plaintiff, on July 2, 2015, of the
dismissal procedures and the possible consequences if he
failed to respond adequately to Defendants' Motion. ECF
No. 54. On August 26, 2015, after receiving an extension,
Plaintiff filed a Response in Opposition to Defendants'
Motion, ECF No. 60, and on September 4, 2015, Defendants
filed a Reply, ECF No. 61. This case was referred to the
undersigned United States Magistrate Judge for all pretrial
proceedings pursuant to the provisions of 28 U.S.C. Â§
636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d) and (e),
D.S.C. Because the Motion for Summary Judgment is
dispositive, a Report and Recommendation is entered for the
is an inmate in the South Carolina Department of Corrections
("SCDC"), and was housed at Lee Correctional
Institution ("LCI") when the facts giving rise to
his Complaint occurred. ECF No. 1 at 1-2. Plaintiff filed his
Complaint on November 18, 2014, and alleged causes of action
for certain due process violations. Id. at 2.
Specifically, Plaintiff maintains that on May 31, 2012, he
was taken from his SMU cell to appear before the
Institutional Classification Committee ("ICC")
regarding his security detention. Id. at 3. During
his hearing, Plaintiff maintains that Sgt. Long
("Defendant Long") turned off the tape recorder and
asked that Captain Commander have an officer retrieve all of
his mail and any piece of paper from his cell. Id.
Plaintiff alleges that he was placed in a holding cell while
the ICC Board members searched his property. Id.
After the search, Plaintiff represents that he returned to
the conference room where he "observed a plastic trash
bag (with [his] name written on it, containing [his] personal
mail, legal mail, and a few pictures that were included in
[his] personal mail) positioned by [Defendant] Long while he
held some papers' in his hands." Id.
maintains that Defendant Long told him they had retrieved a
"Kite" letter from his cell that was written by a
"five-percenter." Id. Though Plaintiff
alleges he was told that nothing linked him personally to
being affiliated with the organization (that is allegedly a
security threat group "STG"), it placed him in
possession of STG material. Id. at 3-4. Plaintiff
also alleges that Defendant Long informed Plaintiff that
certain pieces of paper were believed "to be connected
to the five-percenter organization (but in actuality clearly
represents [his] love and connection to Christianity as [his]
system of beliefs)." Id. at 4.
the ICC Board considered whether to allow Plaintiff to return
to general population, Plaintiff was informed that the Board
recommended he remain on security detention for an additional
two years. Id. At that point, Plaintiff maintains
that Defendant Long informed Plaintiff that all of his
belongings would be placed in the property room inside of his
property bag and all his legal mail and legal materials would
be returned to him. Id. However, Plaintiff alleges
that he was only returned a few items of his legal mail.
Id. Specifically, Plaintiff maintains that Captain
Commander told him that Defendant Long took all his personal
belongings contained in the plastic bag except for a few
legal mail items which Defendant Long left with Captain
Commander. Id. at 4-5.
alleges that on September 8, 2013, he submitted a
"Request to Staff" to Defendant Pearson of the
Special Investigation Unit ("SIU") concerning the
"illegal confiscation, " but Defendant Pearson has
refused to respond to Plaintiff's inquiry. Id.
at 5. Plaintiff maintains that he submitted a similar request
to Defendant Long on June 2, 2014, and to Defendant Durant on
June 4, 2014, and there has been no response. Id.
Plaintiff indicates that Mr. Oberman informed him on the same
day of the incident that he would ensure Plaintiff received
his property back. Id. Plaintiff details the
communications he has sent in his attempts to resolve the
issue and have his property returned. Id. Finally,
Let it be noted that a part of the legal mail contained
inside the plastic bag are a lot of letters from my trial
counsel in criminal (sic) case, I need those letters ASAP
because I'm presently awaiting an "evidentiary
hearing" in my pending post-conviction relief case and
I'm proceeding under "Ineffective Assistance of
Counsel." A few of those letters I intend to utilize as
requests that the court impose an "injunction'
and/or declaratory judgement (sic) against defendants,
specifically that [his] property be returned to [him] and
that Plaintiff be released into general population, as
Plaintiff renounced former affiliations (to Folk Nation) as
S.I.U.' investigator Mr. Pearson can attest."
Id. at 6. Additionally, Plaintiff asks that the
court make defendants pay for his court filing fees, and he
seeks $500.00 in punitive damages from each Defendant.
December 22, 2014, after an initial review of the case, the
undersigned recommended that the district court partially
dismiss the Complaint "insofar as it seeks relief for
continued placement in the [LCI] SMU." ECF No. 11 at 5.
Based on this recommendation, the undersigned instructed that
Defendants "respond only to those portions of the
Complaint that do not involve the SMU-placement issue."
Id. Plaintiff filed no objections to the
undersigned's Report and Recommendation
("R&R"), and on January 21, 2015, the District
Court accepted the undersigned's R&R. ECF No. 17. There,
the court ordered that Plaintiff's Complaint be partially
dismissed "insofar as it seeks relief for continued
placement in the Lee SMU and directed [Defendants] to respond
only to those portions of the Complaint that do not involve
the SMU-placement issue." Id. at 2. Defendants
filed this Motion on Plaintiff's due process, access to
court, and supervisory liability allegations. ECF No. 53.
Standard of Review
federal court must liberally construe pleadings filed by pro
se litigants to allow them to fully develop potentially
meritorious cases. See Cruz v. Beto, 405
U.S. 319 (1972); see also Haines v. Kerner,
404 U.S. 519 (1972). In considering a motion for summary
judgment, the court's function is not to decide issues of
fact, but to decide whether there is an issue of fact to be
tried. The requirement of liberal construction does not mean
that the court can ignore a clear failure in the pleadings to
allege facts which set forth a claim. Weller v. Dep't
of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Nor can
the court assume the existence of a genuine issue of material
fact where none exists. Fed.R.Civ.P. 56(c). "The court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). See also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). The movant
"bears the initial burden of pointing to the absence of
a genuine issue of material fact." Temkin v.
Frederick Cnty. Comm'rs, 945 F.2d 716, 718 (4th Cir.
1991) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)). If the movant carries its burden of showing
there is an absence of evidence to support a claim, then the
plaintiff must demonstrate by affidavits, depositions,
answers to interrogatories, and admissions on file, that
there is a genuine issue of material fact for trial.
Celotex, 477 U.S. at 324-25. An issue of fact is
"genuine" if the evidence is such that a reasonable
jury could return a verdict for the plaintiff.
Anderson, 477 U.S. at 248. Issues of fact are
"material" only if establishment of such facts
might affect the outcome of the lawsuit under governing
substantive law. Id. A complete failure of proof
concerning an essential element of the plaintiff's case
necessarily renders all other facts immaterial.
Celotex, 477 U.S. at 322-23. Moreover, a "mere
scintilla of evidence" in support of an essential
element will not forestall summary judgment.
Anderson, 477 U.S. at 251.
filed a Summary Judgment Motion arguing that they are
entitled to judgment as a matter of law as to all of
Plaintiff's claims. The undersigned will address each of
Defendants' arguments in turn.
Defendant Robert Durant
request that "Defendant Robert Durant" be formally
dismissed as a party to this action because "Plaintiff
has conceded that Robert Durant is not a proper defendant in
this case." ECF No. 53-1 at 3. As Defendants indicate,
on May 13, 2015, the undersigned granted Plaintiff's
Motion to Amend his Complaint to change the then-named
Defendant from "Robert Durant" to "Brian
Durant." ECF No. 48. Based on the May 13, 2015 order,
Defendant Robert Durant was dismissed as a party to this
action. Further, as the current docket reflects, Defendant
"Robert Durant" is no longer listed as a party.
However, to the extent Defendants seek a formal dismissal,
the undersigned recommends Defendant Robert Durant be
dismissed as a party to this action.
maintain that "Plaintiff has failed to exhaust his
administrative remedies and therefore, his Complaint should
be dismissed." ECF No. 53-1 at 4. Defendants represent
that Plaintiff has filed five grievances, and one was
returned unprocessed. Id. at 6. Further, Defendants
argue "[t]he remaining grievances were denied by the
Inmate Grievance Board at the Step 2 level and Plaintiff was
informed of the requirements to file an appeal to the
Administrative Law Court." Id. Defendants
assert that because Plaintiff failed to appeal ...