Opinion
C. A. 9:20-cv-03816-MGL-MHC
08-01-2023
Donald E. Derrick, Plaintiff, v. Sgt. Judie Trusdale and Ofc. Crowder, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff Donald E. Derrick (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights while he was incarcerated within the South Carolina Department of Corrections (“SCDC”). ECF Nos. 1, 14. After the Court dismissed certain Defendants from the action (ECF No. 62), the remaining Defendants Donna Truesdale and Verneeda Crowder (collectively, “Defendants”) filed a Motion for Summary Judgment (ECF No. 68). After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motion, Plaintiff filed a Response in Opposition. ECF No 85. Defendants filed a Reply. ECF No. 89. The matter is, therefore, ripe for review.
Defendant's last name is spelled “Trusdale” in the caption and on CM/ECF; however, based on affidavits filed in this action, it appears the correct spelling of her last name is “Truesdale.” See ECF No. 68-3.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motion.
I. BACKGROUND
Plaintiff's suit arises from an incident that occurred on May 29, 2019, while Plaintiff was incarcerated at Kershaw Correctional Institution (“KCI”). Specifically, Plaintiff alleges that inmate Bobby Thomas took the arm of his wheelchair and repeatedly hit Plaintiff in the head while he was asleep. ECF No. 14 at 12-13.
As to Defendants Truesdale and Crowder, Plaintiff alleges they both failed to protect him from the attack. He contends that Defendants Truesdale and Crowder knew or should have known that inmate Thomas had severe mental health issues, a history of assaulting other inmates, recent and recurring discipline problems, and past violent criminal history. Plaintiff alleges that Defendant Truesdale moved inmate Thomas into Plaintiff's cell, despite Defendant Truesdale allegedly knowing that inmate Thomas was violent. ECF No. 14 at 13. Plaintiff further alleges a failure to protect claim against Defendant Crowder, claiming she had abandoned her post at the time of the incident. ECF No. 14 at 13-14. Plaintiff also asserts that Defendants hindered his ability to file criminal charges by failing to file reports or properly investigate the incident, which violated his civil rights. See ECF No. 14 at 14.
He claims he sustained cuts and contusions to his head and face during the attack that required multiple stitches to his surface tissue and muscles. Plaintiff also claims that he continues to suffer from severe pain in his right eye, headaches, blurred vision, stress, anxiety, depression, post-traumatic stress, and anguish. As relief, Plaintiff requests monetary damages. ECF No. 14 at 19.
Defendants have submitted various documents to the Court, including affidavits of Defendants Truesdale and Crowder. Both Defendants averred that in May of 2019, they were employed by SCDC and assigned to the Palmetto Unit at KCI. ECF No. 68-3 at 1, ¶ 2; ECF No. 68-5 at 1, ¶ 4. Sometime prior to 10:00 a.m. on May 29, 2019, an inmate approached Defendant Crowder and advised her that something was going on in Cell # 63 on the “A” side. ECF No. 685 at 1, ¶ 4. Defendant Crowder then contacted her supervisor, Defendant Truesdale, and they both went to Cell # 63 on Palmetto “A” side to investigate the incident. Id.; ECF No. 68-3 at 2, ¶ 6.
When Defendants arrived at Cell # 63, they both observed Plaintiff with cuts on his face. ECF No. 68-3 at 2, ¶ 6; ECF No. 68-5 at 1-2, ¶ 5. Plaintiff then advised both Defendants that inmate Thomas had attacked him with a wheelchair handle. ECF No. 68-3 at 2, ¶ 7; ECF No. 685 at 1-2, ¶ 5. Plaintiff was transported to medical at KCI and received treatment for his wounds. ECF No. 68-3 at 2, ¶ 7; ECF No. 68-4. Inmate Thomas was then removed from the cell and placed in the holding cell in the Palmetto Unit. ECF No. 68-5 at 2, ¶ 6.
Defendants both averred they have no involvement in cell assignments or roommate assignments. ECF No. 68-3 at 1, ¶ 5; ECF No. 68-5 at 2, ¶ 9. They further testified that Plaintiff never complained of any issues with inmate Thomas prior to the attack on May 29, 2019. ECF No. 68-3 at 1, ¶ 4; ECF No. 68-5 at 2, ¶ 7. Finally, Defendants testified neither have any involvement in providing medical treatment or the initiation of criminal investigations. ECF No. 68-3 at 2, ¶ 9; ECF No. 68-5 at 2, ¶¶ 9-10.
II. LEGAL STANDARD
Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 68. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Defendants argue they are entitled to relief for two reasons. First, they argue Plaintiff did not exhaust his administrative remedies. ECF No. 68-1 at 4-6. Alternatively, they argue that Plaintiff has not produced evidence sufficient to sustain a § 1983 action for various reasons. ECF No. 68-1 at 6-14. The undersigned agrees Plaintiff did not exhaust his administrative remedies, which is dispositive of the action.
A. Failure to exhaust under the PLRA
Defendants argue they are entitled to relief because Plaintiff did not exhaust his administrative remedies before filing this action as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit under § 1983 to challenge prison conditions. Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). “[T]he PLRA's exhaustion requirement is mandatory.” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), abrogated on other grounds by Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017); see also Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (“The exhaustion requirement is mandatory, and courts lack the authority to waive that requirement.”). Section 1997e mandates “proper” exhaustion; thus, a “procedurally defective administrative grievance or appeal” does not satisfy the mandatory exhaustion requirement. Woodfordv. Ngo, 548 U.S. 81, 83-84 (2006).
The PLRA “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “Failure to exhaust is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Baxley v. Jividen, 508 F.Supp.3d 28, 46 (S.D. W.Va. 2020) (citation and internal quotation marks omitted). “However, if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff.” Id. (citation and internal quotation marks omitted).
1. Defendants have met their burden in showing failure to exhaust.
Defendants submitted the affidavit of Felecia McKie, who is the Chief of the Inmate Grievance Branch of SCDC. ECF No. 68-6. As Chief of the Inmate Grievance Branch, McKie is tasked with providing guidance to Inmate Grievance Coordinators at the individual correctional institutions, including KCI. ECF No. 68-6 at 1. As a result, she has access to inmate grievance records at SCDC. ECF No. 68-6 at 1.
In her affidavit, McKie detailed the grievance system and noted the steps an inmate must take to properly exhaust the administrative process. ECF No. 68-6 at 1-3. SCDC has a three-step grievance process. First, an inmate must submit a Request to Staff Member Form (“RTSM”) or Automated Request to Staff Member (“ARTSM”) in an effort to resolve the grievance informally. ECF No. 68-6 at 1-2. Second, if informal resolution fails, the inmate must file a Step 1 Grievance Form (10-5), setting forth the issue grieved. ECF No. 68-6 at 1-2. Third, inmates may then appeal an SCDC decision as to the Step 1 Grievance by filing a Step 2 Grievance Form (10-5A). ECF No. 68-6 at 2-3. SCDC's response to a Step 2 Grievance is considered the final agency decision on the issue. ECF No. 68-6 at 3.
In addition to the materials Defendants attached to their Motion, the undersigned takes judicial notice of other cases that have detailed the grievance procedure. See Smyth v. Stirling, No. 0:21-CV-00649-RBH, 2022 WL 3367759, at *3 n.6 (D.S.C. Aug. 16, 2022) (collecting cases).
McKie reviewed Plaintiff's grievance history and attested that Plaintiff did not follow and/or use all of the options available to him through SCDC's Inmate Grievance System to address matters raised in the action before this Court. ECF No. 68-6 at 3, ¶¶ 13-17. Specifically, McKie averred that no grievances relating to the issues raised in this case were filed by Plaintiff on or around the date of the incident. ECF No. 68-6 at 3, ¶¶ 13-17. Further, McKie reviewed Plaintiff's grievance record, which revealed that he did not file any grievances between March 13, 2019, and February 18, 2020. ECF No. 68-6 at 3, ¶ 15; ECF No. 68-7. McKie averred that the most recent grievances filed on February 18, 2020, and January 13, 2021, related to missing items and the classification policy at SCDC, respectively. ECF No. 68-6 at 3, ¶ 16; ECF No. 68-8. Notably, these grievances bookend the filing date of this lawsuit (October 30, 2020). See ECF No. 1.
Consequently, Defendants have shown that Plaintiff failed to exhaust his administrative remedies with regard to the above subject matters prior to initiating this action. See Baxley, 508 F.Supp.3d at 46 (noting “if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff').
2. Plaintiff has not shown his administrative remedies were unavailable.
In his Response, Plaintiff argues that the administrative process became unavailable to him because of a “quagmire of misrepresentation, misleading information, misdirection, and blatant lies” by prison officials. ECF No. 85 at 4. He cites to Ross v. Blake, 578 U.S. 632 (2016) as supporting his argument, and he appears to allege that prison administrators thwarted him from taking advantage of the grievance process. See ECF No. 85 at 10-13.
The Supreme Court has recognized that the PLRA contains its own textual exception to the mandatory exhaustion requirement, noting the requirement hinges on the “availability” of administrative remedies-that is, an inmate “must exhaust available remedies, but need not exhaust unavailable ones.” Ross, 578 U.S. at 642. The Supreme Court set forth three scenarios where the administrative process, although officially on the books, might be considered “unavailable” for purposes of exhausting under the PLRA. Id. at 643-44. The Court held an administrative procedure is unavailable (1) when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) when it is “so opaque that it becomes, practically speaking, incapable of use;” and (3), “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. Facts supporting the existence of any of these scenarios could remove an inmate's obligation to exhaust his administrative remedies. Id.
Here, Plaintiff's argument that he was thwarted by prison officials from taking advantage of the grievance process falls within the third exception contemplated by Ross. However, Plaintiff has not shown the grievance procedure became “unavailable” to him under this exception.
As an initial matter, the Court notes that Plaintiff attaches what appears to be handwritten copies of Kiosk requests Plaintiff purportedly sent to KCI administrators. See ECF No. 85 at 19; ECF No. 85-1 at 8-44. To be clear, these are not photocopies of the Kiosk requests or of any grievances. Instead, it appears that Plaintiff copied, by hand, various Kiosk requests word-for-word on loose leaf paper, and has submitted the handwritten pages as evidence of his attempts to adhere to the correct procedures for exhausting his administrative remedies. See ECF No. 85 at 12; ECF No. 85-1 at 8-44.
In any event, even accepting Plaintiff's handwritten copies of the various Kiosk requests as evidence of his attempts to adhere to the correct procedures for exhausting his administrative remedies, Plaintiff has failed to carry his burden for two reasons. First, the Kiosk requests largely deal with (1) Plaintiff requesting Police Services or other prison officials to file criminal charges against inmate Thomas and (2) Plaintiff's attempts to follow up on the status of those criminal charges. See ECF No. 85-1 at 8-44. That is, although these Kiosk requests tangentially relate to the incident on May 29, 2019, the requests do not involve Defendants Truesdale or Crowder, nor do they raise any of the constitutional claims at issue in this case-at no time did Plaintiff file a Kiosk request with specific complaints about Defendants or how Defendants allegedly failed to protect him from being attacked by inmate Thomas.
The closest Plaintiff comes is on June 21, 2019, when he asked via Kiosk when he should start the grievance process. ECF No.85-1 at 16.
Second, and perhaps more importantly, Plaintiff has failed to show the grievance process became “unavailable” to him. Other than his general allegations that he was thwarted by unnamed prison officials, Plaintiff does not offer any factual allegations that would show or even suggest any prison official used trickery, lies, or threats to prevent him from availing himself to the grievance process. See Graham, 413 Fed.Appx. at 663 (noting Fourth Circuit precedent holds that “in order to show that a grievance procedure was not ‘available,' a prisoner must adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure” (citing Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008))). There is no evidence other than Plaintiff's bald allegations that employees at KCI “misled, misrepresented, and lied to him.” ECF No. 85 at 13. Further, there is no evidence that Defendants had any involvement in responding to Plaintiff's Kiosk requests, nor are there any allegations made by Plaintiff that Defendants' actions specifically prevented him from filing a grievance.
Indeed, as illustrated by McKie's affidavit and the accompanying attachments detailing Plaintiff's grievance filing history, SCDC has a grievance procedure of which Plaintiff has proven the capability and proclivity to access. See ECF No. 68-6 at 3, ¶¶ 13-17; ECF No. 68-7; ECF No. 68-8. Undoubtedly, the grievance process was available to Plaintiff, as he was using it to grieve other matters. On this record, Plaintiff has not shown prison officials prevented him from using the grievance process. See Moss v. Harwood, 19 F.4th 614, 623 (4th Cir. 2021) (“But where, as here, an inmate in fact is able to participate in a grievance process, notwithstanding alleged obstacles, then that process remains ‘available' for purposes of the PLRA.”).
Nevertheless, Plaintiff argues that he believed that he was following the correct process, and that he “did not know the assault has to be grieved.” ECF No. 85 at 12. That is, Plaintiff appears to argue that because unnamed prison officials failed to advise him fully about the grievance process, he was thwarted from availing himself to that process. See ECF No. 85 at 12 (“If any of the staff, here at [KCI], would have informed me of the proper procedure, I would have avail[ed] myself of it.”). The undersigned is unpersuaded by this argument for two reasons. First, as Defendants point out in their Reply, Plaintiff was aware of the grievance process at KCI, as he signed the Certification of Inmate Orientation on December 7, 2018. See ECF No. 89-1. Second, even taking Plaintiff's ignorance as true, it does not show the grievance process-which he used both before and after the incident-was unavailable. See, e.g., Graham v. Cnty. of Gloucester, Va., 668 F.Supp.2d 734, 739 (E.D. Va. 2009) (“[T]he court has assumed, for purposes of this summary judgment motion, that Plaintiff was not advised of every specific facet of the grievance system. But the court cannot conclude based upon the undisputed facts that Plaintiff was affirmatively prevented from utilizing the system or that he was wholly without any responsibility for his failure to grieve.”), aff'd sub nom. Graham v. Gentry, 413 Fed.Appx. 660 (4th Cir. 2011). Plaintiff's alleged ignorance of the grievance procedure does not excuse his failure to exhaust. See, e.g., State v. S.C. Dep't of Corr., No. CV 0:17-3326-MGL-PJG, 2019 WL 3773867, at *6 (D.S.C. Aug. 9, 2019) (“Ignorance of the grievance process does not excuse Kearse's failure to exhaust his administrative remedies.”), report and recommendation adopted, No. CV 0:17-3326-MGL-PJG, 2019 WL 3780141 (D.S.C. Aug. 9, 2019); Adams v. Sw. Virginia Reg'l Jail, No. 7:12CV00462, 2014 WL 3828392, at *3 (W.D. Va. Aug. 4, 2014) (“[A]ny contention that plaintiff's failure-to-exhaust should be excused merely on the basis of his ignorance about the process fails.”), aff'd sub nom. Adams v. Ofought, 592 Fed.Appx. 225 (4th Cir. 2015).
Consequently, Plaintiff has failed to demonstrate that SCDC's administrative remedies were “unavailable” to him-that is, that the procedures “operate[d] as a dead end,” were so opaque that they were “incapable of use,” or SCDC officials actively “thwart[ed] inmates from taking advantage” of the process. See Ross, 578 U.S. at 643-44. As a result, Plaintiff is unable to overcome the undisputed evidence that he failed to exhaust his available administrative remedies.
B. Failure to show a viable § 1983 claim.
Plaintiff's failure to exhaust his administrative remedies is dispositive of the action. However, even if the undersigned were to find that Plaintiff had shown his administrative remedies became unavailable under Ross, Plaintiff has nevertheless failed to establish a viable § 1983 claim against Defendants Truesdale and Crowder for the following reasons.
1. Eleventh Amendment Immunity
As an initial matter, Defendants are being sued in both their official and individual capacities. ECF No. 14 at 3-4. At all times relevant to Plaintiff's Amended Complaint, it is undisputed that Defendants were employed by SCDC. Thus, Defendants, in their official capacities, are immune from suit under the Eleventh Amendment and, thus, entitled to summary judgment. See Simpson v. S.C. Dep't of Corr., No. 2:19-CV-2245-RMG, 2020 WL 582321, at *2 n.1 (D.S.C. Feb. 6, 2020) (noting SCDC employees are entitled to Eleventh Amendment immunity in suits brought against them in their official capacities).
2. Personal involvement
To state a § 1983 claim, Plaintiff must demonstrate Defendants, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001).
Here, Plaintiff has failed to show that Defendants Truesdale or Crowder had any personal involvement in the alleged constitutional violations. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (citation omitted)). Specifically, the record reflects that Defendants had no involvement in the placement of inmate Thomas in Cell # 63 on the “A” side of Palmetto. ECF No. 68-3 at 1, ¶ 5; ECF No. 68-5 at 2, ¶ 9. Thus, to the extent Plaintiff's claims rest on Defendants moving inmate Thomas to Plaintiff's cell, such claims fail.
3. Failure to protect
Plaintiff's failure to protect claims are an allegation that his Eighth Amendment rights were violated. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (explaining that the Eighth Amendment imposes various duties on prison officials, including a duty “to protect prisoners from violence at the hands of other prisoners”). An inmate must satisfy a two-part test, consisting of both an objective and a subjective inquiry, for liability to attach.
First, for the objective inquiry, “the inmate must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury, or a substantial risk thereof.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (citation and internal quotation marks omitted); see also Farmer, 511 U.S. at 834. This inquiry “requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original).
Second, as to the subjective inquiry, the inmate must show the prison official had a “sufficiently culpable state of mind,” which, in this context, consists of “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal quotation marks omitted). This inquiry requires “evidence suggesting that the prison official had actual knowledge of an excessive risk to the plaintiff's safety.” Danser v. Stansberry, 772 F.3d 340, 347 (4th Cir. 2014). This is a very high standard, such that the prison official must “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837 (emphasis added). The inmate can prove a prison official's actual knowledge of a substantial risk “in the usual ways, including inference from circumstantial evidence.” Id. at 842. That is, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id.
Here, Plaintiff has failed to satisfy the subjective prong, as he has presented no evidence to support a claim that these Defendants were deliberately indifferent to his safety. Specifically, Defendants Truesdale and Crowder both averred that Plaintiff never complained of any issues with inmate Thomas prior to the attack occurring on May 29, 2019. ECF No. 68-3 at 1, ¶ 4; ECF No. 68-5 at 2, ¶ 7. Plaintiff never advised Defendants Truesdale or Crowder that he was afraid for his life, that he had received threats from inmate Thomas, or that Plaintiff was in fear of being attacked by inmate Thomas. ECF No. 68-3 at 1-2, ¶¶ 4, 8; ECF No. 68-5 at 2, ¶¶ 7-8. Plaintiff has produced no evidence that shows otherwise. Further, as Defendants point out in their Reply, inmate Thomas had no assault/battery charges prior to May 29, 2019. See ECF No. 89-2. Consequently, Plaintiff has not met his burden in showing Defendants Truesdale or Crowder knew of and disregarded an excessive risk to his safety. See Anderson, 477 U.S. at 249 (noting that, in the face of a properly supported motion for summary judgment, a plaintiff cannot rest on his allegations to get to a jury without “any significant probative evidence tending to support the complaint”). The undersigned therefore recommends granting summary judgment in favor of Defendants on this claim.
4. No right to criminal investigation
To the extent Plaintiff alleges that Defendants Truesdale or Crowder violated his constitutional rights for failing to file reports or properly investigate the incident, which hindered his ability to bring criminal charges against inmate Thomas, such a claim fails under § 1983. See Gilliam v. Sealey, 932 F.3d 216, 240 (4th Cir. 2019) (“[T]here is no independent constitutional right to investigation of a third party.”); Smith v. McCarthy, 349 Fed.Appx. 851, 859 (4th Cir. 2009) (stating Plaintiffs had no right to criminal investigation or criminal prosecution of another); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (stating that there is no constitutional right “as a member of the public at large and as a victim to have the defendants criminally prosecuted”); see also Stringer v. Doe, 503 Fed.Appx. 888, 890-91 (11th Cir. 2013) (finding no substantive due process right to an internal investigation by law enforcement). Consequently, summary judgment is appropriate.
Although unclear, Plaintiff may also be alleging that Defendants violated the Constitution by violating SCDC's policies. See ECF No. 14 at 13-14. However, violations of policies and procedures alone, even if they occurred, do not rise to the level of a constitutional violation. See Johnson v. S.C. Dep't of Corr., No. 3:06-2062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (“[T]the failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992) (noting § 1983 “does not provide any relief against prison rules violations assuming, arguendo, that such a violation occurred”). Therefore, to the extent Plaintiff may be asserting a claim on this basis, Defendants are entitled to summary judgment.
5. Qualified Immunity
Finally, Defendants are entitled to qualified immunity from Plaintiff's § 1983 claims. The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendants. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
As set forth above, Plaintiff has failed to establish a genuine issue of material fact on any of his allegations of constitutional violations. Because Defendants did not violate Plaintiff's constitutional rights, they are also shielded from liability by qualified immunity.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion, ECF No. 68, be GRANTED.
The parties are directed to the attached Notice for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).