United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
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. (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).
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.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
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
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 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.)
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.
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.(ECF No. 66.) On February 13,
2017, Defendants filed a Reply (ECF No. 67) to
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).
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.
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).
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. (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
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.” 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 ...