United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
MARY GORDON BAKER, Magistrate Judge.
In this civil action, the Defendants have filed a "Motion to Dismiss." (DE #22). Plaintiff, a state prisoner proceeding pro se and in forma pauperis, was served with a Roseboro order. (DE #23). Plaintiff filed a "Response" in opposition to the motion to dismiss. (DE #25). Pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. Pursuant to 28 U.S.C. §636(b)(1), and Local Rule 73.02(B)(2) (D.S.C.), the Magistrate Judge is authorized to review the complaint and to submit findings and recommendations to the District Judge. Upon careful review of the record and applicable law, the Magistrate Judge recommends that the motion be denied for the following reasons:
I. Factual Allegations
Plaintiff is currently incarcerated at Lieber Correctional Institution in South Carolina. (DE #7, Change of Address). He filed this lawsuit complaining of disciplinary proceedings brought against him after a prison riot at McCormick Correctional Institution ("MCCI"). He sues six individual defendants for alleged violation of his due process rights. The defendants are officials at MCCI: Leroy Cartledge (Warden), Alyson Glidewell (Hearing Officer), Scott Lewis ("Associate Warden of Security"), Major Frank Mursier, Lt. Keith McCurry, and Glenda Myers (Commissary).
In his Complaint, Plaintiff alleges the following: On August 26, 2013, three prison officers were assaulted in a prisoner riot at MCCI. The next day, Plaintiff was placed in the special management unit (SMU) "to be placed under investigation for the assault of the 3 officers." (DE# 1 at 3, ¶ IV, "Statement of Claim"). On November 4, 2013, the investigation was extended by 30 days. On November 27, 2013, Major Frank Mursier, after receiving the investigative report, charged five prisoners, including Plaintiff, with "assault and battery of an employee with intent to kill" (801), "riot" (803), and "inciting/creating a disturbance" (814). That day, Plaintiff was served with a "charge paper" giving him notice of a hearing for the disciplinary charges. ( Id ).
In his Complaint, Plaintiff complains that the incident report was not filled out "correctly." He claims that, pursuant to internal policy of the South Carolina Department of Corrections ("SCDC"), the incident report should have listed all the evidence, all the witnesses, all the employees involved, and the exact location of the offense. (DE #1 at 3-4, ¶ IV). Plaintiff indicates that Lt. McCurry and Asst. Warden Lewis signed the incident report. ( Id. at 4). Plaintiff attaches a copy as an exhibit. (DE #1-1 at 17).
Plaintiff indicates that he requested a "counsel substitute" and that he wanted to be present at the hearing. (DE #1-1 at 18, Ex. B). On December 3, 2013, Plaintiff submitted a hand-written statement, alleging "procedural errors" under SCDC policy and including a list of questions and 31 proposed witnesses. ( Id. at 19, Ex. C). Plaintiff also claimed in his statement that "I was not involved in this incident at all." ( Id. ). Plaintiff was provided a "counsel substitute" - Ms. Glenda Myers - who met with Plaintiff on December 5, 2013, and informed him that he could call three witnesses at the disciplinary hearing. Plaintiff alleges that he indicated he wished to call Officer Stafford (one of the assault victims), and two prisoners (Christian Samuels and Billy Lee).
The disciplinary hearing was held on December 6, 2013, with Plaintiff, Ms. Myers (counsel substitute), Officer Glidwell (Hearing Officer), Major Mursier (charging officer), Warden Cartledge, and Asst. Warden Lewis, all personally present. In his Complaint, Plaintiff alleges that the Hearing Officer did not: 1) ask any of Plaintiff's questions, 2) call any of Plaintiff's witnesses, 3) let Plaintiff "review the evidence, " or 4) "acknowledge" the procedural errors he listed in his statement. (DE #1 at 5). Plaintiff complains that Ms. Myers ("counsel substitute") did not question Plaintiff's witnesses, obtain their statements, ask Plaintiff's questions, or obtain documentary evidence. Plaintiff alleges that pursuant to SCDC policy, all of this should have been done. ( Id. ).
In his Complaint, Plaintiff indicates he was found guilty of the assault (801) and riot (803) charges, but that the "inciting/creating a disturbance charge" was dismissed as a lesser included offense. (DE #1 at 6). He describes the discipline imposed for each charge (801 and 803) as: "360 360 days loss of... privileges, 360 days of disciplinary detention, 100 days loss of good-time credits, and failure to earn good-time credits for the month of August."
For relief, Plaintiff seeks a declaration that his due process rights were violated, $20, 000 dollars in compensatory damages from each defendant, $20, 000 dollars in punitive damages from each defendant, a jury trial, recovery of costs of this lawsuit, and any other proper relief. (DE #1 at 7, paragraph V, "Relief"). The pro se Plaintiff does not make any further factual allegations in his Complaint. He does, however, attach 26 pages of exhibits,  including:
1) Incident Report, dated 11-27-2013 (DE #1-1 at 17, Ex. A);
2) Plaintiff's request for "counsel substitute" and to be present at hearing, dated 12-6-2013 ( Id. at 18, Ex. B "Disciplinary Report and Hearing Record");
3) Plaintiff's hand-written statement, dated 12-3-2013 ( Id. at 19, Ex. C, "Staff Request");
4) transcript pages from hearing on 12-6-2013 ( Id. at 20-25, Ex. D, "Disciplinary Hearing Procedure");
5) "Inmate Grievance Form, Step 1, " filed XX-X-XXXX, with decision on 12-17-2013 denying grievance (DE #1-1 at 1-3, "it was determined you ...