Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shaw v. Gillespie

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

October 17, 2019

Leroy Shaw, Plaintiff,
v.
Richard Gillespie, R. L. Turner, and C. Holbrook, Defendants.

          ORDER

          R. Bryan Harwell Chief United States District Judge

         This matter is before the Court for consideration of Plaintiff Leroy Shaw's objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Bristow Marchant, who recommends summarily dismissing Plaintiff's complaint without prejudice.[1] See ECF Nos. 11 & 15.

         Standard of Review

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

         Discussion[2]

         Plaintiff, a state prisoner proceeding pro se, filed his complaint pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were violated in connection with a disciplinary hearing at Perry Correctional Institution on February 7, 2019, which resulted in several disciplinary sanctions.[3] See ECF Nos. 1 & 1-1. The Magistrate Judge recommends summarily dismissing this action because (1) Plaintiff's complaint fails to state a claim, (2) Defendants are entitled to Eleventh Amendment immunity in their official capacities, and (3) supplemental jurisdiction is not warranted for Plaintiff's state-law claims. See R & R at pp. 3-10.

         Plaintiff objects to the Magistrate Judge's conclusion that he has not alleged a deprivation of a protected liberty interest. See ECF No. 15. “[T]o show the deprivation of a liberty interest protected by the Due Process Clause, an inmate must show either: (1) the conditions exceed the sentence imposed in such an unexpected manner as to give rise to protection by the Due Process Clause or (2) the confinement creates an atypical or significant hardship in relation to the ordinary incidents of prison life.”[4] McNeill v. Currie, 84 Fed.Appx. 276, 277 (4th Cir. 2003) (citing Sandin v. Conner, 515 U.S. 472, 483-84 (1995)). Plaintiff has not made either showing because the disciplinary sanctions imposed-thirty days of disciplinary detention, six additional months in solitary confinement (during which time he had to travel to the shower in restraints) and loss of canteen, visitation, and phone privileges for 120 days[5]-did not (1) unexpectedly exceed his sentence (life imprisonment without the possibility of parole) or (2) create an atypical or significant hardship in relation to the ordinary incidents of prison life. See Sandin, 515 U.S. at 485 (“Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.”); Dilworth v. Adams, 841 F.3d 246, 251 (4th Cir. 2016) (explaining “disciplinary segregation, [as] held in Sandin, does not rise to th[e] level” of “‘atypical and significant hardship' on prisoners”); see, e.g., Sandin, 515 U.S. at 483-84 (finding no due process violation where a misconduct hearing resulted in “30 days' disciplinary segregation” for a prisoner “serving an indeterminate term of 30 years to life”); Beverati, 120 F.3d at 503-04 (finding no due process violation where inmates were confined in administrative segregation for six months and faced “onerous” conditions there). In sum, Plaintiff has not plausibly alleged deprivation of a protected liberty interest.[6]

         Plaintiff also asks for an opportunity to amend his complaint, see ECF No. 15 at p. 2, and has filed a separate motion seeking leave to amend. See ECF No. 15. However, Plaintiff has neither filed a proposed amended complaint nor explained how he could cure the deficiencies identified by the Magistrate Judge.[7] Moreover, given the disciplinary sanctions alleged by Plaintiff, the Court concludes amendment would be futile and will therefore deny his motion to amend. See ACA Fin. Guar. Corp. v. City of Buena Vista, 917 F.3d 206, 217 (4th Cir. 2019) (recognizing a court may deny a motion to amend if “amendment would be futile”).

         Conclusion

         For the foregoing reasons, the Court OVERRULES Plaintiff's objections, ADOPTS the R & R [ECF No. 11], DENIES Plaintiff's motion to amend [ECF No. 16], and DISMISSES his complaint without prejudice and without issuance and service of process.[8] IT IS SO ORDERED.

---------

Notes:

[1] The Magistrate Judge issued the R & R in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). The Court is mindful of its duty to liberally construe Plaintiff's pro se filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (recognizing “[a] document filed pro se is to be liberally construed” (internal quotation marks omitted)). But see United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012) (“Although courts must liberally construe the claims of pro se litigants, the special judicial solicitude with which a district court should view ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.