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Khan v. Stirling

United States District Court, D. South Carolina

September 2, 2019

Darnell Khan, Plaintiff,
v.
Bryan P. Stirling, Defendant.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge

         The Plaintiff, Darnell Khan, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. He is currently housed at the Tallahatchie County Correctional Facility (TCCF) in Tutwiler, Mississippi. The Defendant is Bryan P. Stirling, the Director of the South Carolina Department of Corrections (SCDC). In a report and recommendation filed February 12, 2019, the undersigned recommended that the Complaint be summarily dismissed. ECF No. 11. Plaintiff thereafter filed a motion to amend his Complaint on April 5, 2019. ECF No. 20. On May 8, 2019, the Honorable Bruce Howe Hendricks, United States District Judge, granted Plaintiffs motion to amend and ordered him to file an amended complaint (ECF No. 22), which he did on June 3, 2019 (ECF No. 25). The case has now been re-committed to the undersigned for a review of the new amended Complaint.

         Under established local procedure in this judicial district, a careful review has been made of the pro se Amended 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 C.W 1983). Prose 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 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). However, even when considered pursuant to this liberal standard, for the reasons set forth hereinbelow the undersigned finds that this case 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); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].

         Discussion

         In June 2018, Plaintiff was transferred to TCCF from the Lieber Correctional Institution (TCI), part of the SCDC. Plaintiff is serving concurrent South Carolina criminal sentences for burglary-first degree (twenty years imprisonment), voluntary manslaughter (twenty-five years imprisonment), and attempted armed robbery (twenty years imprisonment). See ECF No. 25 at 5; see also SCDC Inmate Report, http://public.doc.state.sc.us/scdc-public/ [Search Inmate "Darnell Khan"].[1] Plaintiff alleges that his transfer to TCCF, an out-of-state, private prison run by Core Civic of America, also known as Corrections Corporation of America (CCA), violates his constitutional rights. Amended Complaint, ECF No. 25 at 8. Plaintiff requests monetary damages. ECF No. 25 at 9-10.

         Plaintiff alleges in his Amended Complaint that riots occurred at the Lee Correctional Institution, part of the SCDC, in April 2018, which resulted in the deaths of seven inmates and injuries to seventeen others, after which authorities stated that the riots "gained fuel because of contraband cell phones inmates carried within the facility." ECF No. 25 at 2-3. Plaintiff asserts that as a result of these riots, forty-eight SCDC inmates from institutions throughout the state of South Carolina were selected as "perfect scapegoats" to be involuntarily transferred out of state to Mississippi in June 2018. Plaintiff further asserts that an SCDC spokesperson announced publically that forty-eight "problematic" inmates were transferred to TCCF. Plaintiff alleges that the Defendant Stirling ordered his out-of-state involuntary transfer, and argues that he should not have been transferred because he has only had "one assaultive disciplinary" (on October 6, 2015) since his admission to the SCDC on February 12, 2015.[2] ECF No. 25 at 2-6.

         Plaintiff initially alleges that his due process rights were violated because he did not receive adequate notice and a reasonable opportunity to be heard before being involuntarily transferred to Mississippi. ECF No. 25 at 8. However, Plaintiffs due process claims are subject to summary dismissal because he has no protected constitutional interest in being housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. See Olim v. Wakinekona, 461 U.S. 238, 250-51 (l983)[inmates have no due process right to choose their specific place of confinement]; Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (same). The Supreme Court, in addressing the transfer of an inmate from Hawaii to California, stated:

In short, it is neither unreasonable nor unusual for an inmate to serve practically his entire sentence in a State other than the one in which he was convicted and sentenced, or to be transferred to an out-of-state prison after serving a portion of his sentence in his home State. Confinement in another State, unlike confinement in a mental institution, is "within the normal limits or range of custody which the conviction has authorized the State to impose." ... Even when, as here, the transfer involves long distances and an ocean crossing, the confinement remains within constitutional limits. The difference between such a transfer and an intrastate or interstate transfer of shorter distance is a matter of degree, not of kind, and Meachum instructs that "the determining factor is the nature of the interest involved rather than its weight." ... The reasoning of Meachum and Montanye[3]compels the conclusion that an interstate prison transfer, including one from Hawaii to California, does not deprive an inmate of any liberty interest protected by the Due Process Clause in and of itself.

Olim v. Wakinekona, 461 U.S. at 247-48 (citations and footnotes omitted). The Supreme Court further noted:

A conviction, whether in Hawaii, Alaska, or one of the contiguous 48 States, empowers the State to confine the inmate in any penal institution in any State unless there is a state law to the contrary or the reason for confining the inmate in a particular institution is itself constitutionally impermissible.

Id. at 249, n. 9 (citations omitted).

         Plaintiff nonetheless argues that South Carolina law or an SCDC policy created a protected liberty interest in certain procedures that he claims were required to be followed before he could be transferred. However, he has not identified or provided any facts to show that he was entitled to any mandatory procedures that created a protected liberty interest. To the extent that Plaintiff is referring to the partial document included with his original Complaint which appears to be a portion of SCDC Policy OP-21.03 (ICC), he has presented nothing to show that this SCDC policy concerning transfers between South Carolina and other signatory states is applicable to a transfer from South Carolina to a private prison.[4] Further, any violation of an SCDC policy (even assuming any such violation in fact occurred), standing alone, does not constitute a violation of Plaintiffs constitutional rights, and is therefore not assertable in a § 1983 action. 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, Virginia, 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]).

         Plaintiff may be attempting to allege that he has been punished without due process because the transfer placed in him in a prison where he is not housed in an open population and he cannot to walk to the cafeteria to eat, cannot walk to the law library several times a week and receive assistance from law clerks, [5] cannot pay for outside dental and medical care, cannot visit sick family members in the hospital or attend a funeral proceeding in the case of a death as allowed by S.C. Code Ann. § 24-3-220, is only allowed out of his cell for one hour of recreation a day, is not allowed to work outside the unit and in prison industries for monetary wages, cannot request a hardship transfer pursuant to SCDC policy OP-21.04, cannot attend weekly religious services, cannot go to school/vocational training, and cannot receive a hearing to challenge rule violations. Disciplinary proceedings which implicate a protected liberty interest demand due process. See Wolff v. McDonnell, 418 U.S. 539 (1974). However, to prevail on such 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). Here, Plaintiff has not alleged that he has suffered the loss of any such protected interest, such as (for example) the loss of good-time credits, as a result of his alleged disciplinary transfer. 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. 472, 484 (l995)[holding that disciplinary segregation did not present the type of atypical, significant deprivation in which a state might create a liberty interest]. 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 486.

         Hence, although Plaintiff complains of more restrictive conditions at TCCF, under the analysis set forth in Sandin, the facts alleged fail to 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 ...


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