United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge.
a civil action filed pro se by Bernard Scott
(“Plaintiff”) on November 14, 2017. At all times
pertaining to the allegations in the complaint, Plaintiff was
a pre-trial detainee housed at the Glenn Campbell Detention
Center/Darlington County Detention Center
(DCDC). This matter is currently before the court
on the motion for summary judgment filed on behalf of
Defendants on April 30, 2018. (ECF #34). As the Plaintiff
is proceeding pro se, the court issued an order on
or about April 30, 2018, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975),
advising Plaintiff of the motion for summary judgment
procedure and the possible consequences if he failed to
respond adequately. Plaintiff filed a document entitled
“Declaration For Retaliation” appearing to allege
changes in classification as a form of retaliation.
Therefore, the Defendants were given twenty days to brief the
issue and Plaintiff was given fifteen days from the date
Defendants responded to the order to file a response.
Defendants filed a reply to the order on October 31, 2018.
Plaintiff did not file a response.
FOR SUMMARY JUDGMENT
federal court is charged with liberally construing the
complaints filed by pro se litigants, to allow them
to fully develop potentially meritorious cases. See Cruz
v. Beto, 405 U.S. 319 (1972); Haines v. Kerner,
404 U.S. 519 (1972). The court's function, however, is
not to decide issues of fact, but to decide whether there is
an issue of fact to be tried. The requirement of liberal
construction does not mean that the court can ignore a clear
failure in the pleadings to allege facts which set forth a
federal claim, Weller v. Dep't of Social Servs.,
901 F.2d 387 (4th Cir. 1990), nor can the court assume the
existence of a genuine issue of material fact where none
exists. If none can be shown, the motion should be granted.
Fed.R.Civ.P. 56(c). The moving party bears the burden of
showing that summary judgment is proper. Summary judgment is
proper if there is no genuine dispute of material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Summary judgment is proper if the
non-moving party fails to establish an essential element of
any cause of action upon which the non-moving party has the
burden of proof. Celotex, 477 U.S. 317. Once the
moving party has brought into question whether there is a
genuine dispute for trial on a material element of the
non-moving party's claims, the non-moving party bears the
burden of coming forward with specific facts which show a
genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita
Electrical Industrial Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574 (1986). The non-moving party must come forward
with enough evidence, beyond a mere scintilla, upon which the
fact finder could reasonably find for it. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The
facts and inferences to be drawn therefrom must be viewed in
the light most favorable to the non-moving party. Shealy
v. Winston, 929 F.2d 1009, 1011 (4th Cir.
1991). However, the non-moving party may not rely on beliefs,
conjecture, speculation, or conclusory allegations to defeat
a motion for summary judgment. Baber v. Hosp. Corp. of
Am., 977 F.2d 872, 874-75 (4th Cir. 1992).
The evidence relied on must meet “the substantive
evidentiary standard of proof that would apply at a trial on
the merits.” Mitchell v. Data General Corp.,
12 F.3d 1310, 1316 (4th Cir. 1993).
that a genuine dispute of material fact exists, a party may
not rest upon the mere allegations or denials of his
pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves). Rather, the party must
present evidence supporting his or her position through
“depositions, answers to interrogatories, and
admissions on file, together with . . . affidavits, if
any.” Id. at 322; see also Cray
Communications, Inc. v. Novatel Computer Systems, Inc.,
33 F.3d 390 (4th Cir. 1994); Orsi v.
Kickwood, 999 F.2d 86 (4th Cir. 1993); Local
Rules 7.04, 7.05, D.S.C.
alleges that while a pre-trial detainee housed at the
Glenn Campbell Detention Center/Darlington County Detention
Center (“DCDC”), he was unfairly classified as a
security threat and not allowed to have a cell mate by
Corporal Shannon who based his classification upon hearsay
from other inmates that he sexually propositioned another
detainee. Additionally, Plaintiff alleges in his complaint
that his classification changed as a form of retaliation
after he filed a grievance against Defendant Sumpter for
calling Plaintiff a crackhead. (ECF No. 1 at 7). Plaintiff
asserts that Defendants claimed the classification changed to
place him in a cell by himself without a cell mate due to the
fact they said he was a registered sex offender. Plaintiff
alleges that before he filed the grievance he was allowed to
have cellmates and that other registered sex offenders were
allowed to have cellmates. Plaintiff also attached his
declaration stating that the classification issues began
after filing the grievance against Officer Sumpter for
calling him a crackhead. Plaintiff submitted a declaration
from another detainee, Robert Ham, stating that Sumpter told
him that Plaintiff filed a grievance on her, that she was
going to get him back for it, and that she would make his
time hard. Plaintiff also submitted a declaration from inmate
William Johnson who declared that he heard “Sgt.
Sumpter called Mr. Scott a crackhead then she walk away from
his cell. Called him a ‘faggot ass mother fucker,
ain't nothing but trouble.'” (ECF. No. 1-1 at
4). In his response to the motion for summary judgment,
Plaintiff states that “[t]his suit is an issue of
defamation of character, written and slander (oral
defamation) which harmed Plaintiff's reputation . .
.” (ECF No. 46 at 7).
filed a motion for summary judgment arguing prisoners
generally do not have a constitutionally recognized liberty
interest in a particular security classification or prison
placement, and Plaintiff cannot show a violation of a
protected liberty interest due to his disciplinary detention
or custody classification. Additionally, Defendants assert
that Plaintiff has failed to set forth any facts sufficient
to proceed on such a claim in this case. As to any
allegations that Defendants failed to follow certain policies
or rules as to his classification or that Defendants
purposely refused to investigate his grievances, the
allegations fail to state a constitutional claim. Defendants
argue that any allegations concerning verbal abuse fail to
state a cause of action as allegations of verbal abuse of
inmates by guards without more, fail to state a claim under
§1983. With regard to Plaintiff's allegations of
retaliation for filing a grievance, Defendants responded that
the action should be dismissed and provided the affidavit of
Patricia Ray “Ray”, the Director of Glenn
Campbell Detention Center, in support of the motion. (ECF
#62-1). Ray attests that every detainee and inmate entering
the GCDC is instructed on the rules of conduct within the
facility, receives the instructions by the use of a video
presentation, and receives a copy of the Darlington County
Detention Center Inmate Handbook. (Id.) Detainees
are expected to read and refer to the Handbook to guide their
conduct within the facility, to follow the rules and
regulations, and to obey commands of correctional officers.
(Id.). Darlington County Detention Center has two
categories for discipline: Minor and Major. (Id.).
Major offenses are defined as any offense that carries a
possible sanction of segregation in excess of 72 hours,
assignment to more restrictive housing, or loss of good time
credits. (Id.). Two minor offenses committed at the
same time or within a 30 day time period constitute a major
infraction. (Id.). Any detainee charged with a major
offense may request a disciplinary hearing before an
impartial Hearing Committee, may appeal the decision if not
satisfied within five days of the hearing date, and the
Director/designee is allowed five working days to investigate
and respond to the appeal. (Id.). A decision by the
Director/designee is considered final and there are no
further appeals. A detainees' failure to follow these
rules and regulations will result in disciplinary action.
(Id.). Plaintiff was charged with passing personal
property on March 21, 2018, to another detainee. Plaintiff
was charged with committing two minor offenses for disobeying
an Order not to pass anything across a red line and by
passing personal property to another detainee.
(Id.). However, even though Plaintiff could have
been charged with two minor offenses which would have led to
a major violation, he was only charged with one and placed on
24 hour lock down. On April 19, 2018, Plaintiff was charged
with a major violation when observed passing contraband to
another detainee, George Matuse. As a result, Plaintiff was
transferred to maximum segregation pending a review board
hearing. (Id.). A disciplinary hearing was held on
April 23, 2018, and Plaintiff was sanctioned thirty days for
passing contraband, a major offense. (Id.).
Plaintiff did not appeal the conviction. (Id.).
Plaintiff was placed in disciplinary segregation for thirty
days because he repeatedly violated the rules of the
Detention Center and not for retaliation. (Id.).
Plaintiff continued to violate detention center rules.
(Id.). On May 4, 2018, Plaintiff, along with eleven
other inmates, were sanctioned for blocking or covering his
cell window, which was another minor violation, and when
coupled with the other minor and major violations,
appropriately warranted his assignment to disciplinary
the Motion for Summary Judgment was filed, Plaintiff filed a
“Declaration for Retaliation.” (ECF No. 39). In
this declaration, Plaintiff asserts as follows:
I Bernard Scott declares under penalty of perjury that on
4-19-18 the Defendant Director Patricia Ray placed me in
max-seg unit for a minor infraction, that by policy I should
have been placed on room restriction. I was seen on camera
passing an item that I purchased off of canteen to another
inmate. On 4-23-18 I was given a hearing for the infraction
by Administration officers when I quoted policy to them on
the infraction to show that Mrs. Ray is going to the extreme
with this punishment when Capt. McFadden caught attitude and
stop hearing by sentencing me to 30 days max-seg which is a
abuse of the policy to the extreme that I feel is a
deliberate retaliation to the lawsuit. Being on max-seg I
have no privileges, no visitation, phone, recreation,
canteen, and 3 showers a week and I am in belly iron and
shackles when escorted to showers, along with 2 sandwich 3
times a day. This is to harsh of a punishment for the
(ECF No. 39).
filed a reply to Plaintiff's declaration of retaliation
stating that in applying Martin v. Duffy, 858 F.3d
239 (4th Cir. 2017) to this case, Plaintiff
clearly exercised his First Amendment rights in requesting a
hearing on his April 19, 2018, charge for passing contraband
and in exercising his rights to file this action. However,
Defendants contend, Plaintiff has not sufficiently
demonstrated that Defendants took some action that adversely
affected his First Amendment rights as Defendants'
conduct was consistent with the rules of conduct for the
detention center and his reassignment to maximum segregation
was based upon his repeated violations of the rules of the
detention center. Therefore, Defendants assert Plaintiff has
failed to demonstrate that there is a causal relationship
between his protected activity and the detention center's
conduct of moving him to maximum segregation.
any allegations by Plaintiff regarding the failure of
Defendants to properly handle his grievances should be
dismissed as there is no constitutional right to participate
in grievance proceedings. Adams v. Rice, 40 F.3d 72,
75 (4th Cir. 1994). Any allegations with regard to
Defendants failing to follow the rules and procedures of the
detention center should be dismissed as: “The failure
of prison officials to follow their own policies or
procedures, standing alone, does not amount to a
constitutional violation.” Johnson v. S.C.
Dep't of Corrections, No. 06-2062, 2007 WL 904826,
at *12 (D.S.C. Mar.21, 2007) (citing United States v.
Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733
(1978)); see also Riccio v. Cnty. of Fairfax, Va.,
907 F.2d 1459, 1469 (4th Cir.1990) (if state law grants more
procedural rights that the Constitution requires, a
state's failure to abide by that law is not a federal due
process issue); Keeler v. Pea, 782 F.Supp. 42, 44
(D.S.C.1992) (violations of prison policies which fail to
reach the level of a constitutional violation are not
actionable under § 1983). Plaintiff's allegations
regarding classification fail as there is no liberty interest
created in custodial classifications. Meachum v.
Fano, 427 U.S. 215, 225 (1976). Further, the Fourth
Circuit has held that a prisoner may set forth a due process
claim relating to custody classification if he can show that
there exists a liberty or property interest of which a person
has been deprived. The Supreme Court has held that a prisoner
has no right under the Due Process Clause to be incarcerated
in a particular facility or to be held in a specific security
classification, barring some showing by the prisoner that his
confinement posed an atypical and significant hardship in
relationship to the ordinary incidents of prison life.
See Olim v. Wakinekona, 461 U.S. 238, 245 (1983). To
demonstrate that he has a liberty interest in avoiding
segregation and loss of privileges, Plaintiff must
demonstrate his segregation and loss of privileges constitute
atypical and significant hardships in relation to the general
population. See Incumaa v. Stirling, 791 F.3d 517,
529 ($th Cir. 2015). In Sandin v. Conner, 515 U.S.
472, 485 (1995), the Supreme Court concluded that the
plaintiff's “segregated confinement did not present
the type of atypical, significant deprivation in which a
state might conceivably create a liberty interest.” 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) ...