United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
Plaintiff, William Leon Burnett, proceeding pro se
and in forma pauperis, brings this action pursuant
to 42 U.S.C. § 1983. Plaintiff is an inmate at the
Allendale Correctional Institution, part of the South
Carolina Department of Corrections (SCDC). The Defendants are
all employees of SCDC. On September 14, 2017, Plaintiff filed
an amendment to his Complaint, adding Defendant Walter
Worrock. ECF No. 1-2. Plaintiff has also filed additional
pleadings, including Plaintiff s Answer to the Court's
Special Interrogatories with attachments and a letter with
exhibits, which have been considered by the undersigned.
See ECF Nos. 9, 9-1, 15, 15-1.
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 Corr., 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 hereinbelow 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
is challenging his disciplinary conviction related to a
weapon (sling blade) that was found under Plaintiff s
mattress. He alleges that he was denied due process because
he was not allowed to call certain witnesses, and further
alleges that the process was unfair because his two cellmates
were not charged in the incident (in his Complaint, Plaintiff
asserts that another inmate slipped the sling blade under his
mattress the day before it was found, but in his grievance he
appears to assert that it may have belonged to or been placed
under his mattress by a cellmate). Complaint, ECF
No. 1 at 3; see also ECF Nos. 1-2 at 1; 15-1 at 4,
Plaintiff states that as a result of his disciplinary
conviction he lost privileges and was given a lower security
classification. He requests that his disciplinary conviction
be overturned and his privileges restored. ECF No. 1 at 5.
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 500, 502 (4th
Cir. 1997); and when the punishment does not cause the
original sentence to be enhanced, protected interests will
generally be 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. 472, 484 (1995). Here, there is no
allegation by Plaintiff that his sentence has been enhanced,
as he has not alleged that he suffered the loss of any
good-time credits as a result of his disciplinary conviction
for possession of a weapon.Additionally, the SCDC
Disciplinary Report and Hearing Record (provided by Plaintiff
as an exhibit) shows that although Plaintiff was sanctioned
to 21 days of disciplinary detention and 111 days of the loss
of canteen, telephone, and visitation privileges, he did not
lose any good time credit.
9-1 at 4. The Disciplinary Report and Hearing Record was
signed by Plaintiff on April 7, 2017, which gave him notice
of the offense for which he was charged (Possession of a
Weapon) more than 48 hours before his hearing was held on
April 12, 2017. The report also indicates that Plaintiffs
accuser (Officer Eady) testified at the hearing and the
report notes the reasons given for the finding of guilt. ECF
No. 9-1 at 4. No constitutional violation is presented in
extent Plaintiff is challenging his current custody
classification, 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]. As noted, in Sandin
v. Conner 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. at 483. 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 a violation of a protected liberty
interest due to his disciplinary detention 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], aff'd,
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 was only placed in disciplinary
detention for 30 days (9 days prior to the disciplinary
hearing and 21 days after the hearing - see ECF No. 9-1 at 4)
such that 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. 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 at 504 [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.
Plaintiff s loss of privileges for 111 days also fails to
state a due process claim. He does not have a liberty
interest in making phone calls; see U.S. v. Alkire,
No. 95-7885, 1996 WL 166400, at *1 (4th Cir. Apr.10, 1996)[no
constitutional right to the use of a telephone in prison];
Hadley v. Peters, 70 F.3d 117 (7th Cir.
1995)[Table][“The denial of telephone privileges for
ten days is not a matter of constitutional
dimension.”], cert denied, 517 U.S. 1111
(1996); and neither prisoners nor would-be visitors have a
constitutional right to visitation. White v. Keller,
438 F.Supp. 110, 115 (D.Md.1977) [but leaving open the
possibility that a permanent ban on all visitation could
implicate the Eighth Amendment], affd, 588 F.2d 913
(4th Cir.1978); see also Kentucky Dep't of Corrs. v.
Thompson, 490 U.S. 454, 461, (1989)[finding no right to
visitation guaranteed by the Due Process Clause].
may also be attempting to assert a claim that the Defendants
did not follow certain SCDC policies or rules as to his
disciplinary conviction (including his claim that his
cellmates should have received disciplinary charges).
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].
also claims that the Defendants have purposefully refused
“to abridge [his] Step 2 grievance” and that
Defendants Pate and Worrock failed to properly investigate.
ECF Nos. 1 at 4 and 5, 1-2 at 1. However, these allegations
fail to state a claim, as it is well-settled that prison
inmates have no federal constitutional right to have any
inmate grievance system in operation at the place where they
are incarcerated. See Adams v. Rice, 40 F.3d at 75;
see also Smith v. Ray, 36 F. App'x 99 (4th Cir.
2002) (“[A]ccess to the grievance procedure is not a
constitutionally protected right[.]”); Oliver v.
Myers, No. 7:08-CV-558, 2008 WL 5212409, at *4 (W.D.Va.
Dec. 12, 2008) [stating that “because state grievance
procedures are separate and distinct from state and federal
legal procedures, an institution's failure to comply with
state grievance procedures does not compromise its
inmates' right of access to the courts”], appeal
dismissed, 335 F. App'x 317 (4th Cir. 2009). Further,
Plaintiff fails to state a claim as to any failure to
investigate the incident. See Charles v. Nance, 186
F. App'x 494, 495 (5th Cir. 2006)[holding that alleged
failure to investigate a grievance “fails to assert a
due process violation”]; Sweat v. Rennick, No.
9:11-2908, 2012 WL 1358721, at *2 (D.S.C. Feb. 7, 2012)
[inmate's complaint that investigator failed to properly
investigate his claims failed to state a claim for a
violation of a constitutional right]; Lewis v.
Williams, Nos. 05-51, 05-52, 2006 WL 538546, at *7 (D.
Del. Mar. 6, 2006) [“[T]he failure to investigate a
grievance does not raise a constitutional issue.”].