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Rivera v. Stirling

United States District Court, D. South Carolina, Anderson/Greenwood Division

June 16, 2016

Kenneth “Syncere

          ORDER AND OPINION

         Plaintiff 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 of process.

         For the 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).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On May 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.)

         The 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 No. 18.)

         II. LEGAL STANDARD

         The 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. § 636(b)(1).

         III. ANALYSIS

         A. Right to Telephone Calls

         First, 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. (Id.)

         Plaintiff’s 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).

         The 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.)

         B. Right to File Prison Grievances

         The 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 ...


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