Taylor v. McCall, Civil Action No. 9:11-2737-JFA-BM

• Decision Date: 21 August 2012
• Docket Number: Civil Action No. 9:11-2737-JFA-BM
• Court: U.S. District Court — District of South Carolina
• Parties: William Taylor, #258185, Plaintiff, v. Warden, Michael McCall; Grievance Coordinator, Ms. Snyder; Disciplinary Hearing officer, and R. L. Turner, in their individual capacity, Defendants.

William Taylor, #258185, Plaintiff,

v.Warden, Michael McCall; Grievance Coordinator, Ms. Snyder; Disciplinary Hearing officer,and R. L. Turner, in their individual capacity, Defendants.

Civil Action No. 9:11-2737-JFA-BM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Dated: August 21, 2012

REPORT AND RECOMMENDATION

This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate with the South Carolina Department of Corrections (SCDC), alleges violations of his constitutional rights by the named Defendants, all Department employees.

The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on June 5, 2012. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on June 6, 2012, advising Plaintiff of the importance of a motion for summary judgment and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendants' motion may be granted, thereby ending his case. Plaintiff thereafter filed a response together with his own motion for summary judgment on June 25, 2012, following which the Defendants filed a response memorandum on July 18, 2012.

These motions are now before the Court for disposition.¹

Background and Evidence

Plaintiff alleges in his verified Complaint² that on March 8, 2011, he was taken before an institutional disciplinary hearing on the charge of threatening to inflict harm/assaulting an employee and/or member of the public. Plaintiff alleges that he was found guilty of this disciplinary charge, but that his hearing (conducted by the Defendant Turner) was conducted without a tape recording of the proceedings in compliance with mandatory SCDC policy.

Plaintiff alleges he filed a Step 1 Grievance appeal alleging that Turner had violated prison policy by not tape recording the proceedings, and that upon review of the documentation from the disciplinary record the Defendant Snyder (the Grievance Coordinator) attempted to listen to the hearing tape and discovered that the hearing "was not tape[d]". Plaintiff alleges that Snyder recommended that his disciplinary conviction be dismissed or reheard, following which the Defendant McCall (the Warden) approved a rehearing due to the fact that there was no tape recording of the original proceedings. Plaintiff alleges, however, that under SCDC Policy OP.22.14, before the Warden can approve a rehearing it must first be approved by the "Division of Operations", and that the Warden never submitted a request to the Division of Operations for a rehearing. Plaintiff further alleges that no rehearing was conducted.

Plaintiff alleges that as a result of the "illegal" disciplinary hearing, he receivednumerous sanctions to include 180 days disciplinary detention, 360 days visitation suspension, 360 days loss of canteen privileges, 360 days loss of telephone privileges, and 6 days lost of good time. Plaintiff alleges he served the full 180 days disciplinary detention notwithstanding this "illegal" conviction, and that "no one has attempted to correct this illegal violation, which is a violation of my due process [rights]". Plaintiff asks for compensation for the days he spent in lock up, as well as other monetary damages. See generally, Verified Complaint.

Plaintiff has attached as exhibits to his Complaint a copy of a Step 2 Inmate Grievance form for Grievance No. PCI-627.11, wherein his grievance was denied, as well as a copy of a Request to Staff Member form dated September 5, 2011, in which Plaintiff is requesting copies of documents. See Exhibits.

In support of summary judgment in the case, the Defendants have submitted an affidavit from Sergeant T. Ragland, who attests that he is a Sergeant with the South Carolina Department of Corrections, assigned to the Perry Correctional Institution, and that on February 13, 2011 he was doing cell checks when he observed the Plaintiff holding a mirror out of the observation window of his cell door. Ragland attests that he directed Plaintiff to give him the mirror, and that if he failed to do so he would be "pulled and his cell searched". Ragland attests that Plaintiff responded by cursing and threatening him with physical harm if he [Ragland] entered Plaintiff's cell. Ragland attests that he therefore charged Plaintiff with threatening to inflict harm/assaulting an employee and/or member of the public. A copy of Ragland's Incident Report concerning this incident is attached to his affidavit as Exhibit A. Ragland attests that Plaintiff was thereafter convicted of this charge at a disciplinary hearing held on March 8, 2011. A copy of the Disciplinary Report and Hearing Record is attached to Ragland's affidavit as Exhibit B. See generally, RaglandAffidavit, with attached Exhibits.

The Defendant Richard Turner has submitted two affidavits (one with the Defendants' motion for summary judgment and one with the Defendants' response to Plaintiff's motion for summary judgment), in which he attests that he is a Disciplinary Hearing Officer (DHO) with the Department of Corrections. Turner attests that he was the DHO at Plaintiff's hearing on March 8, 2011, and that he conducts all disciplinary hearings in accordance with SCDC Disciplinary Policy. Turner further attests that he always attempts to record the disciplinary hearings he conducts, but that occasionally technical problems occur and the hearing is not recorded properly. Turner attests that he has never stopped a hearing tape intentionally to prevent the Plaintiff or any other inmate from stating a defense during a disciplinary hearing. See generally, Turner Affidavits.

The Defendant McCall has also submitted two affidavits (one with each filing by the Defendants) wherein he attests that he is a Warden with the Department of Corrections, and that at the time period of Plaintiff's Complaint he was the Warden at the Perry Correctional Institution, where Plaintiff was housed. McCall attests that he has reviewed Plaintiff's Step 1 appeal of his disciplinary conviction (Grievance No. PCI-627-11, a copy of which is attached to his affidavit as Exhibit A. In Plaintiff's Step 1 grievance, he asserts that his disciplinary conviction should be reversed because his hearing was not tape recorded. The "Action Taken" section of this Step 1 Grievance (signed by the Defendant Snyder) reads: "Reviewed disciplinary documentation, considered reasons for appeal, and attempted to listen to tape; however, the hearing was not recorded in compliance with OP-22.14 Policy and Procedure. Recommend dismissal or rehearing". See McCall Affidavit, attached Exhibit A. McCall attests that he was informed by the Inmate Grievance Coordinator that there was a problem with the tape recording of this disciplinary hearing, and thatdue to the seriousness of the offense, he felt that it was appropriate to hold a rehearing. Consistent with this statement, Exhibit A to McCall's affidavit reflects that, under the "Warden's decision and reason" section of the Step 1 Grievance form, Warden McCall found "[u]pon investigation, it was discovered that [Plaintiff's] hearing was not tape recorded as required by OP-22.14. Due to the seriousness of this offense, however, I am approving a rehearing. Accordingly, this grievance is upheld in part and denied in part". McCall attests that SCDC policy OP-22.14 provides that "where exceptional circumstances are found to exist, the Division of Operations may order that a disciplinary case be reheard," and that he would have obtained the necessary authorization from the Division of Operations prior to holding a disciplinary hearing. McCall attests that he was in the process of requesting the necessary authorization when Plaintiff appealed his decision regarding the disciplinary conviction. McCall attests that, to the best of his knowledge, no rehearing was requested because of Plaintiff's appeal of his Step 1 decision. See generally, McCall Affidavits.

As noted, Plaintiff's Step 2 appeal of his grievance was denied. See Plaintiff's Exhibit [Attachment to Complaint].³ Plaintiff then appealed this decision to the Administrative Law Court, which he is allowed to do under South Carolina law. The evidence reflects that during the pendency of this appeal, the Department of Corrections filed a motion to dismiss, stating that, after a meeting with the Office of General Counsel, the Division of Operations had decided to overturn Plaintiff's conviction because of procedural errors in the hearing process, and that all sanctionsimposed, including the 6 days of lost good time, had been lifted. Therefore, Plaintiff's Administrative Law Court Appeal was dismissed as moot. See Defendants' Exhibit [Order of Dismissal dated October 25, 2011].

Discussion

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). Further, while the Federal Court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972), 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, nor can the Court assume the existence of a genuine issue of material fact...