                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-7025


MIKEL CHRISTIAN,

                    Plaintiff - Appellant,

             v.

JOHN MAGILL, S.C.D.M.H., in his individual and official capacity; HOLLY
SCATURO, Director - S.V.P.T.P, in her individual and official capacity;
KIMBERLY POHOLCHUK, Program Coor. S.V.P.T.P, in her individual and
official capacity; WARDEN STEVENSON, Warden, BRCI, in his individual and
official capacity,

                    Defendants - Appellees.


Appeal from the United States District Court for the District of South Carolina, at Rock
Hill. David C. Norton, District Judge. (0:15-cv-03379-DCN)


Submitted: November 30, 2017                                      Decided: February 8, 2018


Before GREGORY, Chief Judge, and DIAZ and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mikel Christian, Appellant Pro Se. David Allan DeMasters, DAVIDSON &
LINDEMANN, PA, Columbia, South Carolina; Eugene Matthews, RICHARDSON
PLOWDEN & ROBINSON, PA, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Mikel Christian is civilly committed to the South Carolina Department of Mental

Health (SCDMH) pursuant to the South Carolina Sexually Violent Predator Act. See

S.C. Code Ann. §§ 44-48-10 to -170 (2017).         Christian and other residents of the

Sexually Violent Predator Treatment Program (SVPTP) are housed at the Broad River

Correctional Institution (BRCI), a facility run by the South Carolina Department of

Corrections (SCDC).

      Christian filed a 42 U.S.C. § 1983 (2012) action in district court, alleging

numerous constitutional violations in connection with the living conditions, food safety,

disciplinary policies, and other aspects of his confinement in the SVPTP. In an order

dated September 19, 2016, the district court adopted the magistrate judge’s first report

and recommendation in part and granted summary judgment as to all but two claims.

Christian’s two remaining claims were: (1) a claim against Robert Stevenson, Warden of

BRCI; John Magill, Director of SCDMH; and Holly Scaturo, Director of SVPTP, in their

individual and official capacities, alleging that the food at the facility was frequently

contaminated with foreign objects; and (2) a claim against all four Defendants in their

official capacities alleging that Christian had been punished without a hearing for a

disciplinary violation. On remand to the magistrate judge, the Defendants filed renewed

motions for summary judgment with additional evidence. In an order dated July 31,

2017, the district court adopted the magistrate judge’s second report and recommendation




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and granted Defendants’ renewed motions for summary judgment. Christian timely

appealed. * We affirm.

         We review an order granting summary judgment de novo, “drawing reasonable

inferences in the light most favorable to the non-moving party.” Butler v. Drive Auto.

Indus. of Am., Inc., 793 F.3d 404, 407 (4th Cir. 2015) (internal quotation marks omitted).

“Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.’” Id.

(quoting Fed. R. Civ. P. 56(a)). The relevant inquiry is whether the evidence “presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” McAirlaids, Inc. v. Kimberly-Clark Corp.,

756 F.3d 307, 310 (4th Cir. 2014) (internal quotation marks omitted). To survive a

summary judgment motion, “the nonmoving party must rely on more than conclusory

allegations, mere speculation, the building of one inference upon another, or the mere

existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.

2013).

         Because Christian is civilly committed as a resident of the SVPTP, he is “entitled

to more considerate treatment and conditions of confinement than criminals whose

conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307,

321-22 (1982). While incarcerated prisoners are entitled to a certain level of care under

         *
        Christian limits his appeal to the rulings in the district court’s July 31, 2017,
order. Because Christian does not challenge any of the rulings in the district court’s
September 19, 2016, order, he has waived their review. See 4th Cir. R. 34(b); Jackson v.
Lightsey, 775 F.3d 170, 177 (4th Cir. 2014).

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the Eighth Amendment, individuals who have been civilly committed are entitled to

certain care under the Due Process Clause of the Fourteenth Amendment. Patten v.

Nichols, 274 F.3d 829, 836-37 (2001); see also Youngberg, 457 U.S. at 315-16. Among

those due process rights to which civilly committed individuals are entitled is a right to

safe and adequate food. Youngberg, 457 U.S. at 324 (noting that “adequate food, shelter,

clothing, and medical care . . . are the essentials of the care that the State must provide” to

involuntarily committed individuals). Under the Due Process Clause, liability for the

treatment of civilly committed individuals cannot be imposed for mere negligence; it can

only be imposed when “the decision by the professional is such a substantial departure

from accepted professional judgment, practice, or standards as to demonstrate that the

person responsible actually did not base the decision on such a judgment.” Youngberg,

457 U.S. at 323; see also Patten, 274 F.3d at 842.

       We first examine Christian’s food safety claim. Despite evidence that there have

been multiple reports of food contamination on the SVPTP unit, Christian has not

established a genuine issue of material fact sufficient to overcome summary judgment.

Viewing the evidence in the light most favorable to Christian, as we must, the

Defendants’ actions were within the realm of accepted professional judgment under the

circumstances. See Youngberg, 457 U.S. at 323. “The substantive component of the

[D]ue [P]rocess [C]lause protects against only the most egregious, arbitrary governmental

conduct—that is, conduct that can be said to shock the conscience.” Patten, 274 F.3d at

834 (brackets and internal quotation marks omitted).          The requisite analysis is not

whether the Defendants could have taken more or better action, but whether their

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decision was “so completely out of professional bounds as to make it explicable only as

an arbitrary, nonprofessional one.” Id. at 845 (internal quotation marks omitted)). Even

if the remedial action of the Defendants was not ultimately effective, as long as their

actions “exhibit[] both professional concern and judgment” they are “sufficient to satisfy

the requirements of Youngberg.” Id. at 844.

      In this case, the Defendants provided extensive, unrefuted evidence that they took

reasonable steps in response to reported incidents of food contamination, specifically that

they increased the number of employees inspecting each food tray destined for SVPTP,

that they began locking the food carts and beverage containers before transport to

SVPTP, and that, if contaminated food was discovered, it was promptly replaced.

Christian argued that there were still incidents of food contamination after the

Defendants’ remedial actions, but he did not refute the Defendants’ claims that such

remedial actions were taken. Accordingly, the district court did not err in granting

summary judgment on this claim.

       We next turn to Christian’s prehearing punishment claim. As an initial matter, we

affirm the district court’s order granting Stevenson’s renewed motion for summary

judgment as to this claim because Christian did not contest this recommendation in his

objections to the magistrate judge’s report and recommendation, or in his informal brief

to this court. See Martin v. Duffy, 858 F.3d 239, 245-46 (4th Cir. 2017) (“In order to

preserve for appeal an issue in a magistrate judge’s report, a party must object to the

finding or recommendation on that issue with sufficient specificity so as reasonably to

alert the district court of the true ground for the objection.” (internal quotation marks

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omitted)), petition for cert. filed, __ U.S.L.W. __ (U.S. Sept. 25, 2017) (No. 17-539); see

also 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014).

       We also agree that the district court was correct to grant summary judgment on

this claim in favor of the remaining defendants. Evaluating Christian’s due process claim

requires two inquiries: whether Christian's placement in Therapeutic Room Restriction

(TRR) implicated a liberty interest triggering procedural due process requirements, and if

so, whether the procedures afforded Christian satisfied those rights. See Dilworth v.

Adams, 841 F.3d 246, 250-51 (4th Cir. 2016).

       The district court erred in its analysis of the first question here by applying the

standard set forth in Sandin v. Conner to determine whether Christian’s liberty interests

were implicated. See Sandin, 515 U.S. 472, 484 (1995) (explaining that liberty interests

of convicted prisoners are limited to freedom from restraint that imposes “atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life”).

Rather, as we concluded in Dilworth with respect to pretrial detainees, civilly committed

individuals are similarly entitled to procedural due process protections in connection with

any punishment imposed on them. 841 F.3d at 251; see also Bell v. Wolfish, 441 U.S. at

535-37. Here, Christian was placed in TRR pending a disciplinary hearing as punishment

for his violations of SVPTP rules and is therefore entitled to due process.

Turning to the next inquiry (whether Christian was in fact afforded due process), we find

that he was. The realities of maintaining order and safety on the SVPTP ward “require

some amount of flexibility in the due process inquiry.” Dilworth v. Adams, 841 F.3d 251,

253 (4th Cir. 2016) (noting that due process permits prisons and jails to “place inmates

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charged with disciplinary infractions in ‘administrative segregation’ pending their

disciplinary hearings, allowing both prison officials and inmates time to investigate and

prepare for those hearings.”). Because Christian received a disciplinary hearing a few

days after his placement on TRR, prior to the final imposition of the disciplinary action,

we conclude that the actions of the SVPTP were not so egregious as to violate any right

to due process that Christian possessed.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                             AFFIRMED




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