United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
a civil action filed by the Plaintiff, Larry James Tyler,
pro se. Plaintiff, who is detained at the Darlington
County Detention Center while awaiting civil commitment
proceedings pursuant to the South Carolina Sexually Violent
Predator (SVP) Act, SC Code Ann. §§ 44-48-10
through 44-48-170, seeks relief under 42 U.S.C. §
1983. See Complaint, ECF No. 1 at 3.
Plaintiff's Complaint originally contained additional
allegations and Defendants, but by Order of the Court filed
August 16, 2016, all claims and Defendants were dismissed
except for Plaintiff's claim against the Defendant Wayne
Byrd relating to tampering with mail, refusal to make copies
of documents, and stopping his mail. See Order, ECF
December 7, 2016, the Defendant Byrd filed a motion for
summary judgment pursuant to Rule 56, Fed.R.Civ.P. As the
Plaintiff is proceeding pro se, a Roseboro
order was entered by the Court on December 8, 2016, advising
Plaintiff of the importance of a dispositive motion and of
the need for him to file an adequate response. Plaintiff was
specifically advised that if he failed to respond to the
motion for summary judgment, his case could be dismissed.
Although Plaintiff failed to timely respond to the motion for
summary judgment or the Court's Roseboro order,
he did eventually submit a response in opposition on February
motion is now before the Court for disposition.
judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Rule
56, Fed.R.Civ.P. The moving party has the burden of proving
that judgment on the pleadings is appropriate. Temkin v.
Frederick County Comm'rs, 945 F.2d 716, 718 (4th
Cir. 1991). Once the moving party makes this showing,
however, the opposing party must respond to the motion with
specific facts showing there is a genuine issue for trial.
Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75
(4th Cir. 1992). Further, while the Federal Court is charged
with liberally construing a complaint filed by a pro
se litigant to allow the development of a potentially
meritorious case, see Cruz v. Beto, 405
U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519
(1972), 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 Federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. Weller v. Dep't of Social
Services, 901 F.2d 387 (4th Cir. 1990). Here,
after careful review and consideration of the Defendant's
motion and the filings in this case, the undersigned finds
and concludes for the reasons set forth hereinbelow that the
Defendant is entitled to summary judgment.
alleges in his verified Complaint that on August 26, 2015 he
was taken before the Chief Administrative Judge at the
Darlington County Courthouse for a surprise hearing, at which
time he was referred for a mental sexual evaluation under the
South Carolina SVP Act.With respect to Plaintiff's
remaining claim against the remaining Defendant, Plaintiff
alleges that he is now being held at the Darlington County
Jail, and that the Defendant Byrd (Sheriff of Darlington
County) “will not make any copies for me of anything,
or let any of my mail get to a court”. Notably,
however, Plaintiff also concedes in the allegations of his
Complaint that he is represented by legal counsel for
purposes of his pending proceedings. As for his requested
relief, Plaintiff asks that the Court award him monetary
damages, and “stop the Sheriff's Dept. from
tampering with my mail. Readings. Stopping it. Preventing it
from coming in”. In a copy of a letter Plaintiff has
attached to his Complaint that Plaintiff represents he sent
to the Defendant Byrd, Plaintiff essentially complains about
the progress and status of his court proceedings, but also
states in a “P.S.” that Byrd's “jail
officers will not notarize my legal documents, or make
copies. The mail dept. will not send out my mail to the
federal court”. See generally, Plaintiff's
Verified Complaint, with attached exhibit.
support of summary judgment in this case, the Defendant Byrd
has submitted an affidavit wherein he attests that he is the
duly elected Sheriff of Darlington County, that he has never
unlawfully interfered with Plaintiff's legal, unlawfully
stopped his mail, or ever denied Plaintiff access to the
courts. Byrd further attests that at all times relevant
hereto he was acting within the scope of his official duties,
and that he is not aware of any statutory provisions, case
law, or common law which clearly establishes a violation of
Plaintiff's rights under the facts and circumstances of
this case. See generally, Byrd Affidavit. As
previously noted, Plaintiff has offered no evidence, other
than his general and conclusory claim in his Complaint (and
attachment), to support his allegation that he is being
denied access to the Courts, and the undersigned finds that
he has therefore failed to establish a genuine issue of fact
as to whether his constitutional rights have been violated by
the Defendant Byrd sufficient to survive summary judgment.
House v. New Castle County, 824 F.Supp. 477, 485
(D.Md. 1993) [Plaintiff's conclusory allegations
insufficient to maintain claim]; see also Drakeford v.
Thompson, No. 09-2239, 2010 WL 4884897, at * 3 (D.S.C.
November 24, 2010), citing Larken v. Perkins, 22
Fed.Appx. 114, 115 (4th Cir. 2001)[Noting that
non-movant's “own, self-serving affidavit
containing conclusory assertions and unsubstantiated
speculation, . . . [is] insufficient to stave off summary
for purposes of summary judgment that Plaintiff at this point
would be entitled to the status of a civilly committed inmate
(as opposed to a convicted prisoner), his custody status as
such would most closely resemble that of a pretrial detainee.
Lingle v . Kibby, 526 Fed.Appx. 665, 667
(7th Cir. Apr. 15, 2013) [Civilly committed
persons are treated as pretrial detainees]; Valbert v.
South Carolina Dep't. of Mental Health, No. 12-1973,
2013 WL 4500455 at * 9 (D.S.C. Aug. 20, 2013) [same];
Treece v. McGill, No. 08-3909, 2010 WL 3781695 at *
4 (D.S.C. Sept. 21, 2010)[“A civilly committed
individual under the SVPA most closely resembles the custody
status of a pre-trial detainee.”] (quoting LaSure
v. Doby, No. 06-1527, 2007 WL 1377694 at * 5 (D.S.C. May
8, 2007)); Tillman v. Dixon, No. 10-5032, 2011 WL
5119187 at * 9 (W.D.Wash. Aug. 12, 2011)[The rights of those
civilly committed are analyzed using same standards that
apply to pretrial detainees], adopted by, 2011 WL
5118750 (W.D.Wash. Oct. 27, 2011); cf. Larch v.
Gintoli, 04-1962, 2006 WL 895019, at ** 3-4 (D.S.C. Mar.
31, 2006). Therefore, Plaintiff's conditions of
confinement mail/court access claim is evaluated under the
due process clause of the Fourteenth Amendment. Bell v.
Wolfish, 441 U.S. 520, 535, n. 16 (1979); but see
also Martin v. Gentile, 849 F.2d 863, 870
(4th Cir. 1988) [Holding that the Fourteenth
Amendment guarantees at least Eighth Amendment protections].
is alleging that his constitutionally protected rights are
being violated because he is being denied sufficient
resources and assistance to provide him with adequate access
to the courts, in particular because jail officials are
failing to make copies for him or notarize his legal
documents. However, even assuming that the Defendant Byrd
could be held responsible for such a claim,  in order to
pursue a claim for denial of access to the courts, Plaintiff
must have evidence sufficient to establish a genuine issue of
fact that he was both denied access to the Courts and
suffered some actual injury or specific harm as a result.
Lewis v. Casey, 518 U.S. 343, 349-353 (1996)[Inmate
alleging denial of access to the courts must be able to
demonstrate “actual injury” caused by the policy
or procedure at issue]; Magee v. Waters, 810 F.2d
451, 452 (4th Cir. 1987) [“Courts have required a
showing by a complaining prisoner of actual injury or
specific harm to him before a claim of lack of access to the
courts will be sustained”]. Plaintiff has failed to
present any evidence that he has suffered any harm as a
result of any failure of jail officials to provide him with
notary services, copies, or allow for legal mailings.
House, 824 F.Supp. at 485 [Plaintiff's
conclusory allegations insufficient to maintain claim].
it is worth noting that Plaintiff, a frequent filer of
litigation in this Court, has, and continues, to submit
regular court filings in his numerous pending cases, all of
which belie his assertion that he is being denied access to
the Courts. Further, Plaintiff has presented no
evidence to establish that any jail officials' failure to
provide him with notary services of provide him with copy
services (allegations assumed to be true for purposes of
summary judgment) has prevented him from pursuing his court
actions. See also Johnson v. Moore, 948 F.2d 517,
521 (9th Cir. 1991), citing Sands v. Lewis, 886 F.2d
1166, 1169 (9th Cir. 1989)[“Numerous courts have
rejected any constitutional right to free and unlimited
photocopying”]; Howard v. Ozmint, No. 08-3171,
2009 WL 4809427 at * 7 (D.S.C. Dec. 9, 2009) [Dismissing
Plaintiff's claim for lack of access to the courts where
plaintiff failed to show he suffered any irreparable injury
as a result of not having access to a notary]. Finally, as
conceded by Plaintiff in his own Complaint, he is represented
by legal counsel in his pending state court action.
Cf. Cruz v. Hauck, 515 F.2d 322, 331
(5th Cir. 1975) [Where a criminal defendant is
represented by counsel, access to legal materials and/or a
law library is also not required]; see also Jones v.
Lexington County Detention Center, 586 F.Supp.2d 444,
449 (D.S.C. 2008).
this claim is without merit. Cochran v. Morris, 73
F.3d 1310, 1317 (4th Cir. 1996) [Dismissal of access to court
claim proper where inmate relied on conclusory allegations
and failed to identify any actual injury].
on the foregoing, it is recommended that the Defendant's
motion for summary judgment be granted, ...