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Chisolm v. Franklin

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

March 14, 2016

DonSurvi Chisolm, Plaintiff,
v.
Jennifer Franklin, Michael McCall, and Jessica Edmunds, Defendants.

ORDER

R. Bryan Harwell United States District Judge

Plaintiff, a state prisoner proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights while incarcerated at McCormick Correctional Institution (“MCI”).

This matter is now before the court with the Report and Recommendation (“R&R”) of United States Magistrate Judge Thomas E. Rogers, III, [1] filed on January 29, 2016 (ECF No. 59). In his R&R, the Magistrate Judge recommended that the court should grant the defendants’ motion for summary judgment (ECF No. 48), deny the plaintiff’s motion for summary judgment (ECF No. 45), and deem all other pending motions moot.[2] On February 16, 2016, Plaintiff timely filed Objections to the R & R. (ECF No. 61). Defendants filed a Reply to the Objections on February 19, 2016.

Background Facts

The Magistrate Judge has accurately set forth the pertinent facts. However, the Court will briefly summarize the plaintiff’s allegations. In his Amended Complaint (ECF No. 23), construed liberally, Plaintiff alleges that Defendant Franklin, the Postal Director at MCI, violated his constitutional rights by interfering with his incoming and outgoing mail. He alleges that Franklin forwarded a non-legal letter which he attempted to mail to the Correspondence Review Committee (CRC) “after she deemed the Spanish content questionable.” (Am.Compl., ECF No. 23, p. 2) He complains of “the apparent discrimination of the Spanish language.” He also objects to the mailroom staff “strictly scrutiniz[ing] mail from the Special Management Unit (SMU), where he was allegedly housed from July 24, 2014 through February 14, 2015. He alleges that some of his outgoing mail was never delivered and that Defendants withheld or tampered with his legal mail. He complains that Spanish language Buddhist publications were not delivered to him while in the SMU. He alleges that Defendant Edmunds is the Postal/Mailroom Coordinator for SCDC and supervises mailroom staff. He alleges that Director Michael McCall approves all SCDC policies. He alleges that the defendants’ “blatant discrimination, retaliatory attacks and disregard/disruption of the plaintiff’s religious beliefs and free speech violated his rights under the Equal Protection Clause of the First Amendment and religious rights under the Religious Land Use and Institutionalized Persons Act. The defendants (sic) retaliatory attacks also violated these rights under the United States Constitution.” Id. at p. 9.

Standard of Review

The Magistrate Judge makes only a recommendation to the court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

The court is obligated to conduct a de novo review of every portion of the Magistrate Judge’s report to which objections have been filed. Id. However, the court need not conduct a de novo review when a party makes only “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). In the absence of a timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

Magistrate’s Recommended Findings

In the R&R, the Magistrate Judge finds that each of Plaintiff’s claims fails. He finds that Plaintiff’s claim relating to legal mail fails as an access to courts claim because mail to the South Carolina Budget and Control Board is not considered legal mail under SCDC policy, and the plaintiff did not show actual injury. He finds that SCDC policy regarding delivery of non-legal mail to CRC for review of the Spanish language portions of the mail did not violate Plaintiff’s constitutional rights. As to Plaintiff’s equal protection claim, the Magistrate Judge finds that the plaintiff failed to show that similarly situated individuals were treated differently; failed to show that forwarding mail which the mail staff could not translate to the CRC for review for contraband or to determine whether it posed a security risk was not reasonably related to a legitimate penological interest; and failed to show that the alleged unequal treatment resulted from intentional discrimination on the part of the defendants. He further finds that, under SCDC policy as shown by Defendants’ affidavits, the Buddhist publications were withheld because Plaintiff was in SMU, and Plaintiff has not shown that this policy was constitutionally infirm. The Magistrate Judge also finds that any claim under RLUIPA fails because Plaintiff did not show that the policies imposed a substantial burden on his exercise of religion. Additionally, the Magistrate Judge finds that Defendants Edmond (the Agency Mailroom Coordinator for SCDC) and McCall (the Deputy Director of Operations of SCDC and previously the warden at Perry Correctional and Lee Correctional Institutions) cannot be held liable as a matter of law in any supervisory capacity for any acts of others. Finally, he finds that, even if Defendants committed a constitutional violation, they are entitled to qualified immunity for any acts committed in their individual capacities; that the Section 1983 claims against the defendants in their official capacities for money damages are barred by the Eleventh Amendment; and that the Court should decline to exercise jurisdiction over any pendent state law claims.

Plaintiff’s Objections

Plaintiff states that “[t]he Court has ruled SCDC’s mail policy is constitutionally sound” and does not object to that finding. (Obj., p. 1) He does, however, object to the Magistrate Judge’s recommended dismissal of his equal protection claim against Defendant Franklin. He asserts that Franklin was not following SCDC policy when she required review by the CRC of his mail which contained the Spanish language. He asserts that, when Edmunds instructed Franklin to discontinue sending Spanish mail to CRC, this was not a result of any change in the wording of the policy and that this shows that Franklin had not been following the policy and that she was interpreting the policy “as she saw fit against Chisolm”. (Obj., p. 4) He contends that the affidavits that he submitted to the Court of other inmates who had not had their Spanish letters sent for review before mailing show that other similarly situated inmates were treated differently.

Second, Plaintiff states that the defendants failed to address his retaliation claim and that the court failed to explain why this claim should be denied. He states that his retaliation claim relates to the RLUIPA claim and his claim relating to legal mail.

Third, Plaintiff asserts that “the claim against Jessica Edmunds must stand as well. She had direct knowledge of Franklin’s ...


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