Banner v. Anderson
| Decision Date | 15 February 2022 |
| Docket Number | C. A. 6:21-cv-03738-JD-KFM |
| Parties | Genuine Truth Banner, Plaintiff, v. Joel Anderson, Joseph Stines, Dennis Patterson, Sr., Stacey E. Richardson, Dr. Stephanie Skewes, Brandon Byrd, Terrie Wallace, Jana Hollis, Sherry Mackey, Audrey Daniels-Moore, Clinton Parker, Defendants. |
| Court | U.S. District Court — District of South Carolina |
REPORT OF MAGISTRATE JUDGE
The plaintiff, a state prisoner proceeding pro se brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on November 15, 2021 (doc. 1). By Order filed January 13, 2022 the plaintiff was informed that his complaint was subject to summary dismissal because it failed to state a claim upon which relief may be granted, and that he could attempt to cure the defects identified in his complaint by filing an amended complaint within 14 days (doc. 12). The plaintiff was informed that if he failed to file an amended complaint or otherwise cure the deficiencies outlined in the order, the undersigned would recommend that his case be dismissed (id. at 12). On January 31 2022, the plaintiff's amended complaint was entered on the docket (doc. 18).[1] Because the plaintiff's amended complaint likewise fails to state a claim upon which relief may be granted, the undersigned recommends dismissal of the case.
This is a § 1983 action filed by the plaintiff, proceeding pro se (doc. 18). The plaintiff is a state prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and currently housed at Kirkland Correctional Institution (“Kirkland”) (id. at 2). The plaintiff alleges that he was placed on maximum security on April 2, 2020, based upon an incident at Lee Correctional Institution (“the Lee Incident”) (id. at 8). The plaintiff was charged in the Lee County General Sessions Court with assault/attempted murder and possession of a weapon during a violent crime (id. at 8).[2] The plaintiff was found not guilty of the charges on October 13, 2021 (id. at 10).
The plaintiff contends that a disciplinary hearing for the Lee Incident was not held within 21 days as required by SCDC policy (id. at 8-10). The plaintiff contends that his custody classification was then raised, and despite several review board and classification board hearings, his custody classification has not been lowered (id.). The plaintiff was provided notice of a disciplinary hearing for the Lee Incident almost a year later based upon a hearing extension the plaintiff contends was invalid (id.). The plaintiff attended a disciplinary hearing on April 23, 2021, for the Lee Incident, and the plaintiff was found not guilty, but he still was prevented from returning to a lower security classification, which affects his accrual of good credit time (id.).
The plaintiff contends that after he requested information regarding the charges used to justify his stay on max security, he was told that no disciplinary hearing decision had been made (id. at 9). The plaintiff contends that he has not been provided a review every 90 days of his custody status as required by SCDC policy - although he also contends that reviews of his custody status are occurring without him present, which makes them invalid (id. at 9, 14). After the plaintiff was found not guilty of the state criminal charges, he requested documentation for his custody classification, but was not provided all of the requested documentation (id. at 10). The plaintiff further contends that after he was found not guilty of the state criminal charges, a disciplinary hearing was held where, without due process, the plaintiff was found guilty of a disciplinary charge relating to the Lee Incident (id. at 11). Due to the disciplinary charge, the plaintiff was deducted 12 days of good time and sentenced to time served (id. at 11, 14-15). The plaintiff has appealed the disciplinary charge, but has not received a response (id.). The plaintiff complained to Mr. Patterson, Warden Wallace, and the grievance office about his custody status, but did not receive a response (id. at 9).
The plaintiff further contends that he complained to Warden Wallace about the strip search policy and his inability to file electronic grievances, but she did not respond (id. at 10, 13). When the plaintiff complained to Ms. Skewes and Ms. Richardson about his custody level, he was told to file complaints electronically, which he cannot do (id. at 10). He also complained to Warden Wallace regarding mail interference and denied privileges, but she did not respond (id.).
The plaintiff also contends that he and other SCDC maximum security inmates are subject to unconstitutional conditions of confinement (id. at 11). He alleges that there are no windows to the outside in the cells, that the cells are extremely cold, and he has not been provided enough food (id.). The plaintiff alleges that he has not been able to go to outside recreation because he refuses to subject himself to invasive strip searches (id. at 12, 16). While in max security, the plaintiff also alleges that he is not allowed access to educational programs (id.).
The plaintiff alleges that his due process rights and rights under the United Nations Declaration of Human Rights have been violated because he has not been allowed access to recreation, educational programs, has restricted phone access, does not earn good time, and cannot utilize the canteen (id. at 11, 13). He contends that these restrictions impose an atypical and significant hardship on him (id. at 13). The plaintiff further alleges that his First Amendment rights are being violated because his mail has been mishandled and delayed and his phone time has been restricted (id.). He further contends that his rights were violated when he lost 12 good time days as a result of the disciplinary conviction (id. at 13-15). These deprivations were without due process because the plaintiff did not have a disciplinary hearing as required by SCDC policy (id. at 14-15).
The plaintiff alleges that he has been retaliated against by the defendants (id. at 15-16). He contends that his continued custody level is retaliatory because the reason for his custody level, the criminal charges, were dismissed in state court, but his custody level has still not been reduced (id.). With respect to conditions of confinement, the plaintiff alleges that he has lost weight because he is not being fed enough and that his cell is extremely cold despite heaters being run in the hallway (id. at 16-17). With respect to his mail interference claim, the plaintiff alleges that due to receiving a court order late, he has been appointed a lawyer he does not like in his petition for a writ of certiorari case (id. at 17).
The plaintiff's alleged injuries include lost weight, loss of Vitamin D, blood clots, and emotional distress (id. at 18). For relief, the plaintiff seeks money damages (id.).
The plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.”
28 U.S.C. § 1915A(a). Thus, even though the plaintiff has prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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, 391 (4th Cir. 1990).
This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. However the plaintiff's amended complaint is subject to summary dismissal. As an initial matter, the plaintiff appears to assert claims based upon the United Nation's Universal Declaration of Human Rights; however, the Declaration does not create a private right of action. Crittington v. McFadden, C/A No. 3:31-cv-00314-MR, 2021 WL 5452134, at *1 n.1 (W.D. N.C. Nov. 22, 2021). As such, the plaintiff may not bring claims relating to the Declaration.
The...
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