United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant Judge.
Plaintiff, Frankie Lee Dash, also known as Frank Lee Dash,
proceeding pro se and in forma pauperis, brings this
action pursuant to 42 U.S.C. § 1983. He is an inmate at
the Evans Correctional Institution, part of the South
Carolina Department of Corrections (SCDC).
established local procedure in this judicial district, a
careful review has been made of the pro se Complaint pursuant
to the procedural provisions of 28 U.S.C. § 1915 and
§ 1915A, the Prison Litigation Reform Act, Pub.L. No.
104-134, 110 Stat. 1321 (1996), and in light of the following
precedents: Denton v. Hernandez, 504 U.S. 25 (1992),
Neitzke v. Williams, 490 U.S. 319 (1989), Haines
v. Kerner. 404 U.S. 519 (1972), Nasim v. Warden.
Maryland House of Com, 64 F.3d 951 (4th Cir. 1995), and
Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Pro se complaints are held to a less stringent standard than
those drafted by attorneys, Gordon v. Leeke. 574
F.2d 1147, 1151 (4th Cir. 1978), and a federal district court
is charged with liberally construing a pro se complaint to
allow for the development of a potentially meritorious case.
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)); Hughes v. Rowe, 449 U.S. 5, 9 (1980).
even when considered pursuant to this liberal standard, for
the reasons set forth herein below this case is 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);
see also Ashcroft v. Iqbal, 556 U.S. 662 (2009)
[outlining pleading requirements under the Federal Rules of
alleges that he was placed in lock up for thirty-eight days
(from February 1, 2017 through March 8, 2017) for no reason
and without due process (he claims there was "no charge
paper, no investigation"). Complaint, ECF No. 1 at 5. He
has provided copy of a "Notice of Placement in
PHD", indicating that he was placed in pre-hearing
detention because his presence in the population would create
a threat to the safety, security, and/or order of the
institution. Plaintiff signed that he was given a copy of the
notice within 72 hours of his placement in PHD. ECF No. 1-1
at 4. Plaintiff requests $1, 000 for each day he was on lock
up. ECF No. 1 at 6.
appears to be challenging his security or custody
classification because he was placed in lock-up or PHD for
approximately 36 days. However, prisoners generally do not
have a constitutionally recognized liberty interest in a
particular security classification or prison placement.
Hewitt v. Helms, 459 U.S. 460.468 (1983)[no
constitutional right under the Due Process Clause to a
particular security classification or prison placement]. In
Sandin v. Conner, 515 U.S. 472, (1995), the United
States Supreme Court held that a change in the condition of a
prisoner's confinement that does not exceed the scope of
the original sentence gives rise to a federally-protected
liberty interest only if it "imposes atypical and
significant hardship on the inmate in relation to the
ordinary incidents of prison life." Sandin v.
Conner. 515 U.S. at483. In Sandin, the Court
concluded that the plaintiffs "segregated confinement
did not present the type of atypical, significant deprivation
in which a state might conceivably create a liberty
interest." Id. at 485. Hence, under the
analysis set forth in Sandin, Plaintiff cannot show
that he has a protected liberty interest in his security or
custody classification. See Id. at 483-85; see
also Backey v. South Carolina Dep't. of Corrs.,
73 F.3d 356, 1996 WL 1737 (4th Cir. Jan. 3, 1996)[allegations
of wrongful placement in administrative segregation do not
involve the kind of significant or atypical hardship
necessary to invoke due process rights]; Joseph v.
Gillespie. 73 F.3d 357, 1995 WL 756280 (4th Cir. Dec.
21, 1995)["Administrative segregation is not an
'atypical and significant hardship' relative to the
ordinary incidents of prison life that would give rise to a
liberty interest protected by any procedure."];
Reffritt v. Nixon. 917 F.Supp. 409, 412 (E.D.Va.
1996)[plaintiff has no protected interest in remaining in or
being released into general population], affd, 121 F.3d 699
(4th Cir. 1997).
the Fourth Circuit has held that a prisoner may set forth a
viable due process claim relating to a custody status
decision under some circumstances, Plaintiff has failed to
set forth any facts sufficient to proceed on such a claim in
this case. Cf. Incumaa v. Stirling. 791 F.3d 517
(4th Cir. 2015). To determine whether an "atypical and
significant hardship" has been imposed, the Supreme
Court has outlined a fact intensive inquiry into "(1)
the magnitude of confinement restrictions; (2) whether the
administrative segregation is for an indefinite period; and
(3) whether assignment to administrative segregation had any
collateral consequences on the inmate's sentence."
Incumaa. 791 F.3d at 530 (citing Wilkinson v.
Austin. 545 U.S. 209 (2005)). Here, Plaintiff
acknowledges that his period of placement in lock-up has
ended so he is not challenging an ongoing, indefinite period;
Plaintiff has not alleged any claims concerning the magnitude
of confinement restrictions; and he has not alleged any
collateral consequences to his sentence. Rather, he is simply
challenging his placement in lock-up for a little more than a
month. However, it is well established that a temporary
assignment to segregated confinement-for thirty days or even
six months, even with reduced privileges, few out-of-cell
activities or socialization opportunities, and heightened
security measures-is not an atypical or significant hardship.
See Sandin, 515 U.S. at 485-86; Beverati v.
Smith, 120 F.3d 500, 504 (4th Cir. 1997)[finding six
months under conditions dictated by administrative
segregation policies was not atypical under Sandin].
Moreover, Supreme Court precedent also mandates minimal court
involvement "in the day-to-day management of prisons,
" and requires deference to the expertise of prison
administrators in crafting procedures to maintain security
and safety for their constituents and the public.
Wilkinson v. Austin. 545 U.S. at 222 (citing
Sandin. 515 U.S. at 482-83). Thus, the Supreme Court
in Wilkinson and the Fourth Circuit in
Incumaa found that conditions in segregated
confinement triggered constitutional procedural protection
only when they extinguished eligibility for parole and were
extremely isolating, of indefinite duration, and without
defined criteria for eligibility to transfer to less
restrictive conditions. The facts alleged by Plaintiff here
do not state a claim under these precedents.
may also be attempting to assert a claim that the Defendants
did not follow certain SCDC policies or rules when placing
him in lock-up. However, such allegations do not state a
constitutional claim. See Keeler v. Pea. 782 F.Supp.
42, 44 (D.S.C. 1992); cf Johnson v. S.C. Dep't of
Corrs., No. 06-2062, 2007 WL 904826, at *12 (D.S.C. Mar.
21, 2007)[The plaintiffs allegation that defendants did not
"follow their own policies or procedures, standing
alone, does not amount to a constitutional
violation."](citing Riccio v. County of
Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990)[if state
law grants more procedural rights than the Constitution
requires, a state's failure to abide by that law is not a
federal due process issue]. To the extent that Plaintiff is
complaining about the proceedings utilized, only disciplinary
proceedings which implicate a protected liberty interest
demand due process. See Wolff v. McDonnell. 418 U.S.
539 (1974). However, to prevail on a due process claim, an
inmate must first demonstrate that he was deprived of
"life, liberty, or property" by governmental
action. Beverati v. Smith, 120 F.3d at 502. When the
punishment does not cause the original sentence to be
enhanced, protected interests will be generally limited to
freedom from restraint that imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life. Sandin v. Conner. 515 U.S. at 484
[holding that disciplinary segregation did not present the
type of atypical, significant deprivation in which a state
might create a liberty interest]. Here, Plaintiff has not
alleged that he has suffered the loss of any good-time
credits, or that he even received a disciplinary
to the extent Plaintiff requests monetary damages for mental
anguish; ECF No. 1 at 6; there is no federal constitutional
right to be free from emotional distress, psychological
stress, or mental anguish; hence, there is no liability for
compensatory or punitive damages under § 1983 regarding
such claims. See Grandstaff v. City of Borger, 767
F.2d 161 (5th Cir. 1985); Rodriguez v. Comas, 888
F.2d 899, 903 (1st Cir. 1989).
the two named Defendants, as employees of the SCDC they are
entitled to Eleventh Amendment immunity in their official
capacities as to any claims for monetary damages. The
Eleventh Amendment to the United States Constitution divests
this Court of jurisdiction to entertain a suit for damages
brought against the State of South Carolina, its integral
parts, or its officials in their official capacities, by a
citizen of South Carolina or a citizen of another state.
See Alden v. Maine, 527 U.S. 706 (1999); College
Savs. Bank v. Florida Prepaid Educ. v. Halderman, 465
U.S. 89 (1984)[although express language of Eleventh
Amendment only forbids suits by citizens of other States
against a State, Eleventh Amendment bars suits against a
State filed by its own citizens]; Alabama v. Pugh.
438 U.S. 781, 782 (1978); Will v. Michigan Dep't of
State Police. 491 U.S. 58, 61-71 (1989); Edelman v.
Jordan, 415 U.S. 651, 663 (1974)[stating that "when
the action is in essence one for the recovery of money from
the state, the state is the real, substantial party in
interest and is entitled to invoke its [Eleventh Amendment]
sovereign immunity from suit even though individual officials
are nominal defendants"] (quoting Ford Motor Co. v.
Dep't. of Treasury, 323 U.S. 459, 464 (1945V): see
also Harter v. Vernon. 101 F.3d 334, 338-39 (4th
Cir. 1996); Bellamy v. Borders, 727 F.Supp. 247,
248-50 (D.S.C. 1989); Coffin v. South Carolina Dep't
of Social Servs.. 562 F.Supp. 579, 583-85 (D.S.C. 1983);
Belcher v. South Carolina Bd. of Corrs., 460 F.Supp.
805, 808-09 (D.S.C. 1978).
the United States Congress can override Eleventh Amendment
immunity through legislation, Congress has not overridden the
states' Eleventh Amendment immunity in § 1983 cases.
See Quern v. Jordan. 440 U.S. 332. 343 (1979V
Further, although a State may consent to a suit in a federal
district court, Pennhurst. 465 U.S. at 99 & n.9,
the State of South Carolina has not consented to such
actions. Rather, the South Carolina Tort Claims Act expressly
provides that the State of South Carolina does not waive
Eleventh Amendment immunity, consents to suit only in a court
of the State of South Carolina, and does not consent to suit
in a federal court or in a court of another state. S.C. Code
Ann. § 15-78-20(e).
even if this case were to otherwise proceed, Warden Eagleton
is entitled to summary dismissal as a party Defendant.
Plaintiff only claims that the Defendant Associate Warden
Sellers abused his authority by having him placed in lock-up.
No allegations are asserted against the Defendant Eagleton.
In order to proceed with a claim under § 1983, a
plaintiff must affirmatively show that a defendant acted
personally in the deprivation of his constitutional rights;
Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.
1977); and when a complaint contains no personal allegations
against a defendant, that defendant is properly dismissed.
See Karafiat v. O'Malry, 54 Fed.Appx. 192, 195
(6th Cir. 2002); Curtis v. Ozmint, C/A No.
3:10-3053-CMC-JRM, 2011 WL 635302, at *4 n. 5 (D.S.C. Jan. 5,
2011), adopted by, 2011 WL 601259 (D.S.C. Feb. 11, 2011);
Whaley v. Hatcher, No. 1:08CV 125-01-MU, 2008 WL
1806124, at *1 (W.D. N.C. Apr. 18, 2008). Additionally, a
§ 1983 claim for supervisory liability (even assuming
that is why Eagleton is named as a Defendant) cannot rest on
the doctrine of respondeat superior. Carter v.
Morris. 164 F.3d 215, 221 (4th Cir. 1999). Although
there is a limited exception to the prohibition against
imposing liability on supervisory personnel in § 1983
cases under the doctrines of respondeat superior or vicarious
liability, see Slakan v. Porter. 737 F.2d 368,
370-75 (4th Cir. 1984), that exception does not operate to
save Plaintiffs Complaint from dismissal for failure to state
a claim against Eagleton, as the Slakan exception
requires factual allegations showing a "pervasive and
unreasonable risk of harm from some specified source
..." coupled with allegations showing that the
supervisor's "corrective inaction amounts to
deliberate indifference or 'tacit authorization of the
offensive [practices].'" Slakan, 737 F.2d
at 373; see Shaw v. Stroud, 13 F.3d 791 (4th Cir.