United States District Court, D. South Carolina, Anderson/Greenwood Division
ORDER AND OPINION
Kenneth “Syncere” Rivera
(“Plaintiff”), proceeding pro se and in forma
pauperis, filed an action pursuant to 42 U.S.C. §
1983. This matter is before the court for review of the
Magistrate Judge’s Report and Recommendation
(“Report”) (ECF No. 16), filed November 4, 2015,
recommending that Plaintiff’s Complaint (ECF No. 1)
against Defendants Bryan P. Stirling, Joseph McFadden, and
Ms. W. Scarbrough (collectively “Defendants”) be
dismissed with prejudice for failure to state a claim on
which relief may be granted and without issuance and service
reasons below, the court ADOPTS the findings of the Report
and DISMISSES Plaintiff’s Complaint (ECF No. 1) with
prejudice. In addition, due to Plaintiff’s active
history of filing actions that lack a claim for which the
court can grant relief, this court agrees that
Plaintiff’s Complaint (id.) be designated a
strike pursuant to 28 U.S.C. § 1915(g).
FACTUAL AND PROCEDURAL BACKGROUND
28, 2015, Plaintiff was transferred to Lieber Correctional
Institution (“Lieber”). (ECF No. 16 at 2.)
Plaintiff claims his outgoing telephone calls have failed
since his transfer, which causes him to suffer from migraine
headaches associated with stress and depression. (ECF No. 1.)
Plaintiff implicates the South Carolina Department of
Corrections (“SCDC”) because other prisoners do
not experience similar circumstances. (Id.)
Plaintiff alleges he exhausted his administrative remedies
but they remain unprocessed. (Id.)
Magistrate Judge filed the Report recommending the court
dismiss the action with prejudice for failure to state a
claim on which relief may be granted and without issuance and
service of process. (ECF No. 16 at 6.) Further, the Report
recommends Plaintiff be designated a “strike”
pursuant to 28 U.S.C. § 1915(g). (Id.)
Plaintiff filed timely Objections on November 19, 2015. (ECF
Magistrate Judge’s Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, and the recommendation has no
presumptive weight-the responsibility to make a final
determination remains with this court. See 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 and Recommendation to which specific objections are
made, and the court may accept, reject, or modify, in whole
or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C.
Right to Telephone Calls
Plaintiff objects to the Report and alleges he filed an
appropriate claim against Defendants for denying his
telephone privileges. (ECF No. 18.) Additionally, Plaintiff
asserts communication between a prisoner and his lawyer are
essential to effective representation and the ability to
discuss case-related issues and that “intimate
association, that is, the right to maintain personal family
relations” is recognized by the Supreme Court.
telephone privilege claim was brought pursuant to 42 U.S.
§ 1983. To establish a § 1983 claim, Plaintiff must
demonstrate a violation of a right secured by the
Constitution or laws of the United States and that the
violating party is a state actor operating under the color of
the law. West v. Atkins, 487 U.S. 42, 48 (1988).
court observes that the Fourth Circuit Court of Appeals
affirmed that there is no constitutional or federal statutory
right to use a telephone while in prison. U.S. v.
Alkire, No. 95-7885, 1996 WL 166400, at *1 (4th Cir.
Mar. 21, 1996). Furthermore, the Report indicates that
Plaintiff offers no evidence Defendants are denying his
ability to communicate with free society altogether. (ECF No.
16 at 5.) Therefore, this court agrees with the Magistrate
Judge’s finding and accepts her recommendation for
dismissal of the telephone privilege claim for failure to
state a plausible claim. (Id.)
Right to File Prison Grievances
Magistrate Judge recommends that this court dismiss the
Complaint because an inmate’s access to and
participation in a prison’s grievance process is not
constitutionally protected. (ECF No. 16 at 5 (citing
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994)).)
This court agrees with the ...