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Ham v. Sterling

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

August 15, 2017

Angelo Ham, also known as Angelo Bernard Ham, Plaintiff,
v.
Bryan P. Sterling, David M. Tartarsky, Maria Leggins, Dennis Bush, James C. Dean, Debra Eastridge, Defendants.

          ORDER

         This matter is before the court upon review of Magistrate Judge Kevin F. McDonald's Report and Recommendation (“Report”) (ECF No. 9), filed on August 3, 2016, recommending that pro se Plaintiff Angelo Ham's (“Plaintiff”) 42 U.S.C. § 1983 action be summarily dismissed for failing to allege the deprivation of a federal constitutional right and therefore failing to state a claim for which relief can be granted. (ECF No. 9.) This review considers Plaintiff's objections to the Report, filed August 24, 2016. (ECF No. 11.)

         I. 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, which has no presumptive weight. The responsibility to make a final determination remains with the 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. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         II. BACKGROUND AND ANALYSIS

         Plaintiff alleges that he sent a request to the prison mailroom that they notarize his application for trademark and articles of incorporation. (ECF No. 1 at 3.) A mailroom staff member responded that the mail room does not provide notary services and suggested that Plaintiff submit a request to the Office of General Counsel. (Id.) Plaintiff sent a request to the Office of General Counsel, which was denied. (Id. at 3-4.) Plaintiff states that he exhausted the prison's administrative grievance procedure and filed a civil action in the Richland County Court of Common Pleas. (Id. at 4-5.) He contends that this action was dismissed and he appealed to the South Carolina Court of Appeals. (Id. at 5.) Plaintiff states that his appeal was dismissed because the South Carolina Court of Appeals denied his application to proceed in forma pauperis and he did not pay the filing fee. (Id. at 5-6.) Plaintiff seeks nominal, punitive, and statutory damages. (Id. at 7.)

         The Magistrate Judge determined that Plaintiff's Complaint did not allege facts that constitute a deprivation of a federal constitutional right or facts that show he has sustained an actual injury from being denied access to the courts. (ECF No. 9.) As a result, the Magistrate Judge found that Plaintiff did not plead the required elements of an action under § 1983. (ECF No. 9.) Plaintiff was advised of his right to file objections to the Report. (ECF No. 9.) In his timely response to the Report, Plaintiff specifically objects only to the Magistrate Judge's determination that access to notary public services is not a federal constitutional right. (ECF No. 11.)[1]

         A. Plaintiff's Objections

         Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. The statute authorizes the district court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, Plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         Section 1983 creates a private cause of action for individuals deprived of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. Plaintiff objects to the Magistrate Judge's finding that a lack of access to notary services unrelated to litigation affecting the inmate's incarceration is not a deprivation of an inmate's constitutional right to access to courts. (ECF No. 11.) Plaintiff appears to make two distinct but interrelated arguments to support this objection: (1) that because the South Carolina Legislature has promulgated statutes authorizing the Director of the South Carolina Department of Corrections to create regulations, these regulations “become[] the content, or substance, of legislation which is and falls directly in substantive due process, ” and as a result, the promulgation of South Carolina Department of Corrections Regulation GA 01.03, ¶ 18[2] creates a right of access to notary services which was violated by the prison, and (2) that denial of notary services is a deprivation of his right of access to courts as defined by case law and federal statutes. (ECF No. 11.) The court considers each of these arguments in turn.

         B. The Court's Review

         Plaintiff's first argument is that GA 01.03 creates a due process right to notary services. As an initial matter, although sections 24-1-90 and 24-1-140 of the South Carolina Code authorize the Director to make regulations, nothing in these statutes suggest that these regulations then become the law of South Carolina or provide any type of constitutional right. S.C. Code Ann. §§ 24-1-90, -140 (2017).

         In support of his first argument, Plaintiff asserts that Regulation GA 01.03 makes mandatory the notarization of all items not included under the heading “Notarization is not required for the following documents” because the prior sentence states that “Inmates will have access to notary services.” (ECF No. 11); GA 01.03 (emphasis added). Plaintiff argues that the regulation creates a duty for prison officials to notarize his documents and that a failure to do so constitutes a violation of his constitutional rights actionable under § 1983. (ECF No. 11.) However, the regulation does not create a categorical imperative that inmates receive access to notary services for all documents except those listed under the heading “Notarization is not required for the following documents.” See GA 01.03. Rather, the regulation explicitly states that inmates will have access to notary services for a list of specified documents and requires prison officials to notarize those documents, but the regulation goes on to list specific documents that prison officials are not required to notarize. Id. The regulation thus contemplates that not all documents must be notarized by prison officials.

         In addition, the regulation states that “[i]f the Notary receives documents which do not fall into the above categories, s/he may contact the Office of General Counsel for assistance.” Id. The regulation thus contemplates a request for notarization of documents that are not listed in the regulation and expressly provides directions for those instances. However, the result is not the automatic notarization of those documents, but rather a conference with the Office of General Counsel. Id. In Plaintiff's case, prison officials conferred with the Office of General Counsel before declining to notarize Plaintiff's documents, as required by the regulation. (ECF No. 9 at 1.) Thus, even if the regulation were to create a right capable of being protected under § 1983, such as a conference with the Office of General Counsel upon application for notary services not specifically exempt from notarization, the prison officials did not violate the regulation and a fortiori could not have deprived Plaintiff of this right.

         Additionally, even if the promulgation of regulation GA 01.03 makes mandatory the notarization of all documents not included under the heading “Notarization is not required for the following documents, ” a failure to so notarize would not constitute a violation of § 1983. Section 1983 requires that the deprivation affect a right recognized either by federal law or the Constitution. 42 U.S.C. § 1983. State regulations can dictate how certain rights will be protected, but they cannot create additional rights protected by federal law or the Constitution. See Hart v. City of Santee, Civil Action No.: ...


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