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McFadden v. Bittinger

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

March 20, 2017

Bernard McFadden, #199135, Plaintiff,
v.
Edward Bittinger, Captain and/or Disciplinary Hearing Officer of Kershaw CI; Tony Smith, Captain of Kershaw CI; in their individual or personal capacities; Defendants.

          ORDER AND OPINION

         Plaintiff Bernard McFadden (“Plaintiff”), proceeding pro se and in forma pauperis, filed this instant action (“Complaint, ” ECF No. 1) pursuant to 42 U.S.C. § 1983 alleging that Defendants Edward Bittinger and Tony Smith (hereinafter collectively referred to as “Defendants”) violated his constitutional rights by denying him certain privileges.[1] (ECF No. 1 at 3.) Defendants filed a Motion to Dismiss for Lack of Prosecution under Rules 37 and 41, Fed.R.Civ.P. (“Motion to Dismiss, ” ECF No. 39) and a Motion for Summary Judgment (ECF No. 43).

         In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02, the matter was referred to United States Magistrate Judge Mary Gordon Baker for pre-trial handling. On January 13, 2017, the Magistrate Judge issued a Report and Recommendation (“Report, ” ECF No. 63) recommending the court grant Defendants' Motion for Summary Judgment (ECF No. 43), find Defendants' Motion to Dismiss (ECF No. 39) moot, and dismiss the Complaint (ECF No. 1). This review considers Plaintiff's Objections to the Report and Recommendation (“Objections”) filed January 30, 2017. (ECF No. 66.) For the reasons set forth herein, the court ACCEPTS the Magistrate Judge's Report (ECF No. 63), GRANTS Defendants' Motion for Summary Judgment (ECF No. 43), DISMISSES the Complaint (ECF No. 1) with prejudice, and DENIES Defendants' Motion to Dismiss (ECF No. 39) as moot.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         This court concludes, upon its own careful review of the record, that the Magistrate Judge's factual synopsis is accurate and incorporates it by reference. This court will thus focus on the facts pertinent to the analysis of Plaintiff's Objections.

         Plaintiff is presently incarcerated at the Kershaw Correctional Institution (“Kershaw”) of the South Carolina Department of Corrections (“SCDC”). Plaintiff alleges that on March 11, 2014, while in the process of requesting legal documents, he was charged with abuse of privileges. (ECF No. 1 at 3.) Plaintiff asserts that because of the charge, Defendants denied him visitation, canteen, and use of phone privileges. (Id. at 4.) Plaintiff alleges that the charge and subsequent loss of privileges[2] were in retaliation for his legal activities. (Id.) Plaintiff also alleges that he was racially discriminated against by Defendants. (Id. at 4-5.) Plaintiff seeks a jury trial to determine if Defendants unconstitutionally restricted his rights. (Id. at 5.)

         Plaintiff filed the instant action on June 23, 2015, alleging First and Fourteenth Amendment constitutional violations because of Defendants' restriction of privileges in retaliation for Plaintiff's legal activities. (ECF No. 1 at 3.) Defendants, after filing an Answer on December 16, 2015 (ECF No. 20), filed a Motion to Dismiss for Lack of Prosecution under Rules 37 and 41, Fed.R.Civ.P. on April 19, 2016 (ECF No. 39), and a Motion for Summary Judgment on April 29, 2016 (ECF No. 43). On May 25, 2016, Plaintiff filed his Response in Opposition. (ECF No. 47.) On June 2, 2016, Defendants filed a Reply (ECF No. 49) to Plaintiff's Response in Opposition. On June 13, 2016, Plaintiff filed an Affidavit in Opposition and a Response in Opposition (ECF No. 51), and on December 12, 2016, filed a Supplemental Response (ECF No. 59). On December 19, 2016, Defendants filed a Reply (ECF No. 60) to Plaintiff's Supplemental Response in Opposition.

         On January 13, 2017, the Magistrate Judge issued a Report, recommending the court grant Defendants' Motion for Summary Judgment, and dismiss Plaintiff's Complaint. (ECF No. 63 at 14.) Judge Baker's Report found that Plaintiff failed to show Defendants' conduct adversely affected Plaintiff's access to the courts (Id. at 8), or that a causal relationship existed between Defendants' conduct and Plaintiff's constitutional activity (Id. at 9). The Report also dismissed Plaintiff's characterization that he was discriminated against based on race, finding that white inmates Norman Olsen and Dennis Brown were not similarly situated. (Id. at 11-12.) Finally, the Report recommends finding Defendants' Motion to Dismiss moot because Defendants were entitled to summary judgment. (Id. at 14.) On January 30, 2017, Plaintiff filed Objections to the Report, where he raises fifteen objections to the Magistrate Judge's Report.[3](ECF No. 66.) On February 13, 2017, Defendants filed a Reply (ECF No. 67) to Plaintiff's Objections.

         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's Report is only a recommendation to this court, and 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 to which specific objections are made. Id. 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).

         Objections to a Report and Recommendation must specifically identify portions of the Report and the basis for those objections. Fed.R.Civ.P. 72(b). “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Failure to timely file specific written objections to a Report will result in a waiver of the right to appeal from an order from the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). If the plaintiff fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.

         Additionally, pro se filed documents should be “liberally construed, ” held to a less stringent legal standard than those complaints or proceedings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, even liberally construed, objections to a Report must specifically identify portions of the Report and the basis for those objections. Fed.R.Civ.P. 72(b)(2).

         III. DISCUSSION

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) “the violation of a right secured by the Constitution and laws of the United States” and (2) this violation “was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). In his Objections, Plaintiff rejects the Report's finding that there was no issue of fact in regard to retaliation, arguing circumstantial evidence, case law, and inmate affidavits support his claims. (ECF No. 66 at 3-5) Plaintiff further argues that the denial of privileges is more than a “de minimis inconvenience, ” (id. at 4) and that Defendants discriminated against him on the basis of race when sanctioning him.[4] (Id. at 6-9.) If Plaintiff's constitutional rights were violated through retaliation by Defendants, then Plaintiff would be allowed to seek relief under § 1983, thus giving the court original jurisdiction under § 1331. However, the court concludes that Plaintiff has not shown that Defendants violated Plaintiff's constitutional rights, and further finds Plaintiff has not supported his claims of racial discrimination.

         Plaintiff asserts that he has satisfied the second prong of the Report's three prong retaliation test, arguing that Defendants' sanctions were not “de mimimis, ” and had a “chilling effect” on his rights (id. at 3), thus proving Defendants' actions “adversely affected [his] First Amendment rights.”[5] In support of this claim, Plaintiff mainly relies on Hart v. Hairston, where the Fifth Circuit Court of Appeals (“Fifth Circuit”) held, in part, that an inmate's punishment of “27 days of commissary and cell restrictions” constituted an “adverse act” when done in response to the inmate filing a grievance against prison employee Hairston. 343 F.3d 762, 764 (5th Cir. 2003). As Defendants point out in their Response in Opposition, not only is Hart not mandatory authority, but the facts in Hart's situation are materially different. (ECF No. 67 at 4.) In Hart, there is an “immediate and obvious connection between the inmate's complaint and Hairston's disciplinary action. (ECF No. 67 at 4-5.) Here, there is no such obvious connection. In ACLU of Md., Inc., v. Wicomico County., Md., the Fourth Circuit Court of Appeals ...


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