Opinion
C/A No.: 1:18-2124-BHH-SVH
02-20-2020
Darrell L. Goss, Plaintiff, v. Bryan P. Stirling, Charles Williams, Joel Anderson, Aaron Joyner, Michael Stephen, Scott Lewis, Willie Davis, Richard Cothran, Levern Cohen, Donnie E. Stonebreaker, Terrie Wallace, Gary Lane, John Pate, and Patricia Yeldell, Defendants.
REPORT AND RECOMMENDATION
Darrell L. Goss ("Plaintiff"), proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights against Richard Cothran ("Cothran"), Warden of Turbeville Correctional Institution ("TCI"), in his individual capacity, for failure to protect Plaintiff from inmate assaults and the threat of inmate assaults due to increased gang violence.
This case is one of many Plaintiff has filed in both state and federal courts concerning his incarceration at various prisons run by the South Carolina Department of Corrections ("SCDC"). [See, e.g., ECF No. 53 at 2 n. 1-2].
This matter comes before the court on a motion for summary judgment filed by all defendants [ECF No. 155], Plaintiff's motion for voluntary dismissal [ECF No. 163], and Plaintiff's motion for preliminary injunction [ECF No. 185]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to the motion for summary judgment. [ECF No. 159]. The motions have been fully briefed [ECF No. 155, 157, 158, 163, 173, 174, 178, 185, 186, 187, and 190] and are ripe for disposition.
All defendants in this case seek summary judgment. However, because Plaintiff has moved to voluntarily dismiss with prejudice all claims against all defendants except against Cothran [see ECF No. 163, ECF No. 174 at 1-2], the court only addresses arguments made by Cothran as necessary for resolution of Plaintiff's remaining claim against him, as discussed more below.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge deny Cothran's motion for summary judgment, grant Plaintiff's motion for voluntary dismissal, and deny as moot Plaintiff's motion for preliminary injunction. I. Factual and Procedural Background
Plaintiff filed his complaint on August 2, 2018, originally alleging, in part, inmate-on-inmate violence occurring in various prisons ran by the SCDC over a period of four years, culminating on April 15, 2018, when "a gang war erupted," at Lee County Correctional Institution, killing a total of eleven inmates and injuring several others in an eight-hour riot. [ECF No. 1 at 18]. Plaintiff alleges defendants "refuse[d] to protect inmates . . . from acts of violence committed by known gang members . . . ." Id. at 21-23. Plaintiff alleges he has "suffered constant and repeated assaults" and "extreme mental anguish" as a result of defendants' failure to take corrective action as to the prison violence. Id. at 22-23.
Plaintiff has never been incarcerated at Lee County Correctional Institution. [ECF No. 155-2 at 4; ECF No. 158 at 7 n.8].
As relevant to the resolution of the instant motions, the facts taken in light most favorable to Plaintiff are as follows. Plaintiff is a state prisoner serving three concurrent 20-year sentences for kidnapping, armed robbery, and assault and battery with intent to kill, with a sentence start date of June 15, 2007. [ECF No. 155-1 ¶ 2]. Plaintiff was administratively transferred to TCI on September 8, 2016, and placed in the Taw Caw Unit, a general population unit. Id. ¶ 3. During the 16 months Plaintiff was incarcerated at TCI, Plaintiff incurred and was convicted of charges for assault of an inmate with intent to kill/injure, discussed more below, as well as possession of a weapon, possession of contraband/cell phone, and two counts of creating a social networking site. Id. ¶ 4.
The record in this case is extensive, given the numerous claims brought by Plaintiff against numerous defendants, with defendants filing almost 400 pages of argument and exhibits in support of defendants' motion for summary judgment. [See ECF Nos. 155, 157, 158]. However, because Plaintiff moved to dismiss the vast majority of claims and defendants after defendants filed their motion for summary judgment, much of what has been submitted by defendants in support of their motion is inapplicable to Plaintiff's remaining claim against Cothran.
In a declaration submitted by Plaintiff, he alleges that during the time the was incarcerated at TCI, he was threatened and extorted by prison gangs, particularly the Folk Nation, also known as "the G's." [ECF No. 174-5 ¶¶ 2-3]. Plaintiff alleges the G's threatened, intimidated, and assaulted him, forcing him to procure drugs, alcohol, tobacco, cellphones, and other related contraband for them. Id. Plaintiff alleges he witnessed the G's kill multiple inmates though the use of shanks, axes, pipes, poles, and by lynching and that he witnessed inmate-on-inmate stabbings, beatings, and riots. Id.
In contrast, Cothran attests that during the time Plaintiff was incarcerated at TCI, "there were 8 documented assaults with a weapon . . . that involved inmate on inmate violence" and "11 incidences of using an object to cut or puncture another," the latter of which resulted "in the only inmate death seen in that period." [ECF No. 155-1 ¶ 12; see also ECF No. 174-8 (monthly management information reports for TCI from January 2016 to April 2018, detailing inmate deaths and assaults); ECF No. 155-3 (summary of details of incidents of inmate death and violence from May 8, 2016 to January 16, 2018)].
Plaintiff alleges correctional officers were afraid and coordinated with the gangs and that the G's ran and governed the Taw Caw Unit. Id. ¶¶ 4-5. Plaintiff alleges that in December 2017, correctional officers allowed the door dividing the A and B wings of the Taw Caw Unit to remain open, resulting in an inmate from the B wing crossing over to the A wing and beating and stabbing an A wing inmate. Id. ¶ 6. Plaintiff alleges that because of this incident, there was "talks of retaliation among the G's because it involved one of their members," and the G's, armed with various weapons, tried repeatedly thereafter to access the other wing of the Taw Caw Unit. Id.
Plaintiff alleges that after witnessing daily attempts to get to the other wing, he phoned his mother, telling her to talk to Cothran. Id. ¶ 7. Plaintiff's mother has submitted a declaration, stating that she called Cothran, and he responded he would look into the situation. [ECF No. 174-18 ¶ 3].
The parties agree that on December 31, 2017, the G's started a riot in the Taw Caw Unit:
December 31, 2017. Case 37-2017-038. On December 31, 2017, a Major Inmate disturbance occurred on Taw Caw Unit, B-Side. Between three and four pm, a Correctional Officer was called to get an Inmate from B wing for visitation. He was on B Side when an inmate in a hoodie with a towel around face came up behind him with a knife. He and another inmate forced the guard to release his keys and locked the Correctional Officer in a cell. It was alleged by certain inmates interviewed that Blood gang members were unlocking cells to other Blood gang members. Inmates opened certain cell doors and a fight ensued. Eight inmates were injured and taken to various medical centers for treatment. One inmate died at the scene. Upon interview of all injured inmates, they refused to identify attackers and signed Criminal Process Withdrawal forms. Death of the inmate occurred secondary to stab wounds to the chest and back. The search of the unit after the event found 10 cell phones, two homemade pick type weapons, two homemade shank type weapons. Prosecutions are pending.[ECF No. 155-3 at 5, ECF No. 174-5 ¶ 8].
Plaintiff also alleges the first riot he witnessed in the Taw Caw Unit occurred when an inmate assaulted a correctional officer by hitting him multiples times on his head with locks attached to an extension cord and that the inmate then took the officer's security keys and unlocked all of the cells. [ECF No. 174-5 ¶ 3]. Plaintiff does not, however, provide any information regarding specifically when this alleged event occurred, who was involved, or any other details.
Plaintiff alleges that during this riot, he was beaten and stabbed. [ECF No. 174-5 ¶ 8]. Two other inmates who were incarcerated at TCI during this time, Leonard McBee ("McBee") and Jeffrey Cromer ("Cromer"), have submitted declarations alleging they stopped gang members from beating and stabbing Plaintiff during the riot. [ECF No. 174-6 ¶ 9; ECF No. 174-7 ¶ 8].
Cothran attests that Plaintiff, while incarcerated at TCI, "received no injuries from alleged inmate violence" and that "[h]is medical records are the best evidence of his lack of injury and lack of complaint of injury." [ECF No. 155-1 ¶¶ 5, 20]. Plaintiff's medical records from this time period reveal no treatment for injuries from alleged inmate violence nor any complaint of any such injuries. [ECF Nos. 155-44, 155-45, 155-46, 155-47, 155-48; see also ECF No. 155-3 at 5 ("According to the inmate bed summary, [Plaintiff] was in Taw Caw A side from 12-14-17 until his transfer 1-16-18 and not involved in this incident. Further, he is not mentioned in the Police Services, SLED or Incident reports")].
After the riot, the prison went into lockdown, and during this time, Plaintiff alleges he was threatened by the G's. [ECF No. 174-5 ¶ 9]. Plaintiff alleges he phoned his mother again, directing her to relay to Cothran that Plaintiff sought protective custody. Id. Plaintiff's mother called Cothran and was informed that the Taw Caw Unit was on lockdown due to an ongoing investigation and therefore no one could be transferred from the unit. [ECF No. 174-18 ¶ 3].
Plaintiff alleges on January 16, 2018, a correctional officer unlocked his cell during lunchtime and allowed 2 members of the G's to enter. [ECF No. 174-5 ¶ 10]. Plaintiff alleges these gang members attacked and stabbed him. [ECF No. 174-5 ¶ 10; ECF No. 174-4 at 4 (medical record from January 25, 2018, stating Plaintiff has "small healing scar flexor side of left forearm")]. Plaintiff allegedly defended himself by taking a knife from one of the gang members and chasing them. [ECF No. 174-17 at 2, see also ECF No. 174-2 at 2 (Plaintiff stating instead that he utilized his own knife)].
Plaintiff alleges the correctional officer was having an "inappropriate relationship" with one of gang members, but does not indicate this allegation is based on personal knowledge. [ECF No. 174-5 ¶ 11]. An "affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). In any event, this allegation need not be relied upon in addressing Plaintiff's claim.
According to Cothran, Plaintiff's version of events is incorrect. Instead, on the day in question, during the afternoon meal distribution, Plaintiff and his cellmate "rushed from their cell with 8-inch and 14-inch homemade shank knives, stabbed an inmate multiple times in the chest and stomach, then chased down another inmate after several directives to stop went unheeded and inflicted stab injuries to the back of the second inmate as well." [ECF No. 174-10 ¶ 33, see also ECF No. 155-1 ¶ 13, ECF No. 155-3 at 9-10; ECF No. 155-5; ECF No. 155-22; ECF No. 155-24]. Cothran states chemical munition had to be administered three times by various officers before Plaintiff could be taken into custody. [ECF No. 174-10 ¶ 33]. According to Cothran, Plaintiff was then examined by medical on the same day, and these records indicate that Plaintiff was decontaminated from the chemical munitions by shower; additionally, "[n]o report of injury was made by [Plaintiff] and no finding of any injury was made by SCDC staff." [ECF No. 174-10 ¶ 34, ECF No. 155-4 at 1, ECF No. 155-49 at 1, ECF No. 155-22 ¶¶ 11-12; ECF No. 155-23 at 2-5].
In his declaration, McBee, who was incarcerated at TCI from 2016 to 2017, alleges that the gang members at TCI would use McBee to hide from guards their knives and other weapons for them. He says these weapons were created from instruments in the prison such as light fixtures, desks, chairs, and lockers and searches were rare and not thorough. [ECF No. 174-6 ¶¶ 4-6]. McBee alleges TCI was understaffed and therefore only one correctional officer would be assigned to supervise both wings of the Taw Caw Unit, and the officers would rarely come to the unit, instead allowing the inmates, and, in particular, the gang members, to supervise the unit. Id. ¶ 7. McBee further alleges gang members would intimidate, extort, rob, beat, stab, and kill other inmates who were not a part of their gang, and that these violent acts were known to the TCI officials. Id. ¶ 8. McBee was allegedly attacked by another inmate who beat him badly with a steel pipe, resulting in his transfer out of TCI. Id. ¶ 3.
Cromer, who was incarcerated at TCI and who had a cell next to Plaintiff, alleges that TCI's Taw Caw Unit was effectively run by the G's, who were given "free reign" to intimidate, extort, rob, beat, stab, and kill other inmates. [ECF No. 174-7 ¶¶ 3-5]. Cromer alleges the unit had only one correctional officer assigned to it who was absent for long periods of time and who was rarely present at the unit. Id. ¶ 6. Cromer alleges TCI experienced many riots in 2017, and prior to the December 2017 riot, he informed multiple prison officials that the G's were trying to get onto the B wing to stab someone. Id. ¶ 7. Cromer additionally alleges he witnessed G's come to Plaintiff's cell door on January 16, 2018, with knives. Id. ¶ 10.
On January 19, 2018, Plaintiff filed a step 1 inmate grievance form with the SCDC. [ECF No. 174-2]. Plaintiff labeled this form "emergency," and stated that on January 16, 2018, officers allowed known gang members to serve Plaintiff food at his cell, that one of the gang members pulled a knife from his coat pocket and stabbed Plaintiff in the arm, and Plaintiff grabbed "my own knife and began chasing him away." Id. at 2. Plaintiff further stated that since his arrival at TCI, "officials have repeatedly endanger[ed his] life . . . by its grossly negligent actions and/or inactions." Id.
Plaintiff's grievance was returned to him for failure to include "an answered Request to Staff or provide on this grievance a[n] answered Kiosk Ref. # with your grievance," further providing directions for refiling the grievance with the required answer and suggesting Plaintiff send a request to staff ("RTS") to "Major Chvala since security falls under his supervision." Id. at 3 (emphasis in original). On February 9, 2018, Plaintiff filed an RTS to Richard Chvala ("Chvala"), alleging the same as he alleged in his grievance form, but the RTS indicates no response from Chvala or any other corrections officer. [ECF No. 174-3].
Due to the January 16, 2018 incident, Plaintiff was convicted on institutional disciplinary charges for assault of an inmate with a weapon with intent to kill/injure and was transferred to Allendale Correctional Institution. [ECF No. 174-10 ¶¶ 33, 36].
According to Cothran, SCDC Police Services investigated and sought to bring outside criminal charges against Plaintiff and his accomplice for assault and battery with intent to kill, but the individuals stabbed ultimately did not cooperate in the prosecution. [ECF No. 155-1 ¶ 15]. A statewide separation order was entered keeping Plaintiff from serving at any institution where either victim was incarcerated, and Plaintiff was transferred out of TCI that night for the security of the attacked inmates. Id.
Plaintiff filed his complaint in this case on August 2, 2018. Plaintiff initially attempted to bring his claims as a class action, with 27 inmate-plaintiffs and 14 defendants, but the court held on August 6, 2018, that Plaintiff, proceeding pro se, could not represent the rights of others in a class action. [ECF No. 7]. Plaintiff filed an amended complaint and proposed second amended complaint, adding new defendants and new claims, unrelated to any alleged ongoing prison inmate violence. [ECF Nos. 17, 30]. On November 30, 2018, the court severed these unrelated claims into Case No. 6:18-3245-BHH-KFM. [ECF No. 39 at 7].
Extensive and contentious discovery thereafter ensued. [See ECF Nos. 69, 86, 92, 97, 104, 109, 135, 164]. In addition, Plaintiff has filed multiple motions for temporary restraining orders and preliminary restraining orders that have been refiled in the severed case, denied, or withdrawn, with the exception of Plaintiff's latest motion for preliminary injunction, addressed below. [See ECF Nos. 32, 46, 67, 131, 179, 185].
On October 2, 2019, all defendants filed the instant motion for summary judgment. [ECF No. 155]. On October 9, 2019, Plaintiff filed a notice of voluntary dismissal with prejudice of all claims except those against Charles Williams, Warden of McCormick Correctional Institution, and Cothran; this notice included a motion for additional discovery. [ECF No. 163]. The court denied Plaintiff's motion for additional discovery and reserved ruling on Plaintiff's notice of voluntary dismissal pending a response from defendants. [ECF No. 164]. On October 23, 2019, defendants consented to the dismissal of all claims Plaintiff seeks to dismiss. [ECF No. 173 at 2].
In so doing, the court did not directly address Plaintiff's argument in the alternative that, in the event the court denies Plaintiff's motion for additional discovery, Plaintiff moves the court for leave to amend his complaint to add a claim under South Carolina state law for gross negligence. [See ECF No. 163 at 9]. The court clarifies that its October 9, 2019 order denying Plaintiff's motion to conduct additional discovery additionally denied Plaintiff's motion to amend, made in the alternative. [ECF No. 164]. The deadline to amend pleadings elapsed on November 14, 2018. [See ECF No. 15].
On October 30, 2019, Plaintiff filed an opposition to defendants' motion for summary judgment, further seeking to dismiss with prejudice all claims against all defendants except against Cothran, in his individual capacity, for violation of Plaintiff's Eighth Amendment rights, for failure to protect Plaintiff from inmate assaults and the threat of inmate assaults due to increased gang violence. [ECF No. 174]. On November 13, 2019, defendants filed a reply, consenting to the dismissal of all claims Plaintiff seeks to dismiss. [ECF No. 178 at 2].
On January 24, 2020, Plaintiff filed a motion for injunction and supplement [ECF Nos. 185, 186], alleging that Warden Brian Kendall ("Kendall") of Lieber Correctional Institution ("LCI"), and officers under his command, have failed to protect him from two inmates he identifies as Inmate Powell and Inmate Brown. II. Discussion
Plaintiff has also filed this motion and supplement in Goss v. Morley, C/A No. 2:19-2469-BHH-MGB.
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, 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, "[o]nly 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." Id. at 248. 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, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Motion for Voluntary Dismissal
Plaintiff has moved for voluntary dismissal with prejudice as to all claims and all defendants except against Cothran in his individual capacity for violation of Plaintiff's Eighth Amendment rights for failure to protect him from inmate assaults and the threat of inmate assaults due to increased gang violence. [ECF No. 163, ECF No. 174 at 1-2]. Defendants consent to dismissal of these claims. [ECF No. 173 at 2, ECF No. 178 at 2]. Therefore, the undersigned recommends dismissal with prejudice of all claims and defendants except against Cothran in his individual capacity for violation of Plaintiff's Eighth Amendment rights.
2. Motion for Summary Judgment
a. Failure to Exhaust Administrative Remedies
Cothran argues that Plaintiff failed to timely exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id. This requirement "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). To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524.
Satisfaction of the exhaustion requirement requires "using all steps that the agency holds out, and doing so properly." Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original). Thus, "it is the prison's requirements, and not the [PLRA], that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). Defendant has the burden of establishing that Plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). However, "an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
As relevant here, TCI grievance procedures direct that prior to filing a grievance form, an inmate "must make an effort to informally resolve a grievance by submitting a Request to Staff Member Form to the appropriate supervisor/staff within eight (8) working days of the incident." [ECF No. 174-1 at 13.2]. "However, in certain cases, informal resolution may not be appropriate or possible (e.g., when the matter involves allegations of criminal activity)." Id. If the grievance alleges criminal activity, it will be forwarded to the division of investigation. Id. at 13.1. Emergency grievances are considered on a case-by-case basis by the branch chief of the inmate grievance branch. Id.
Plaintiff argues that TCI's administrative remedy was unavailable to him because (1) his grievance was not processed as an "emergency" or as containing allegations of criminal activity, inconsistent with TCI's own policies, (2) his grievance was returned to him because of his failure to include an answered RTS, inconsistent with TCI's policy that an inmate must only send an RTS, and (3) even though he sent an RTS, it was never answered, preventing him from further pursuing relief. [ECF No. 174 at 4-9].
Cothran objects to the "new claims and allegations raised in Plaintiff's opposition," particularly with regard to "the issue of failure to exhaust administrative remedies." [ECF No. 178 at 3]. Although most, if not all, of the allegations made by Plaintiff in his opposition are not found in his complaint, Plaintiff has not raised any new claims. [See ECF No. 1 at 21-22 (Plaintiff alleging that defendants "refuse[d] to protect inmates . . . from acts of violence committed by known gang members that the prison officials knew of should have known of.")].
In response, Cothran submits evidence that Plaintiff's grievance was handled consistent with TCI's policy, Plaintiff's grievance was properly determined to not be an emergency, and that there are no circumstances in his submitted grievance that exempted him from attempting informal resolution through submission of an RTS. [ECF No. 178-1 ¶¶ 5-10, 14].
As stated above, however, Plaintiff argues that after his grievance was returned, he submitted an RTS to Chvala that was allegedly never answered, preventing him from further pursuing relief. Plaintiff has submitted as evidence the allegedly-unanswered RTS. [ECF No. 174-3]. Cothran responds that Plaintiff never followed up with Chvala and there is no record of an RTS to Chvala ever being submitted. [ECF No. 178-4 ¶ 9].
Resolving all disputes of material fact in favor of Plaintiff as the non-moving party, it is unclear whether TCI's grievance procedure was truly "available" to Plaintiff, precluding grant of summary judgment. See Ross v. Blake, 136 S. Ct. 1850, 1858-59 (2016) (noting that only "available" administrative remedies must be exhausted).
Additionally, the court rejects Cothran's argument that he is entitled to summary judgment because Plaintiff has failed to produce evidence of more than a de minimus physical injury as required by the PLRA. See 42 U.S.C. § 1997e(e) ("No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury . . ."); Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997) (holding that a sore, bruised ear lasting three days was de minimis and failed to meet the requisite physical injury to support an Eighth Amendment claim or a claim for emotional or mental suffering). Here, Plaintiff has submitted evidence he was beaten and stabbed during the December 31, 2017 riot and again on January 16, 2018, and that he has suffered lasting mental injury due to these events, creating a genuine dispute as to Plaintiff's injuries, precluding grant of summary judgment. [See, e.g., ECF No. 155-1 ¶¶ 5, 13-14; ECF No. 174-2 at 2; ECF No. 174-3 at 2; ECF No. 174-4; ECF No. 174-5 ¶¶ 8, 10; ECF No. 174-6 ¶ 9; ECF No. 174-7 ¶¶ 8, 10].
The court recognizes the conflicting evidence put forth by Cothran from Dr. John McRee, who reviewed Plaintiff's medical records and examined Plaintiff roughly one year after the alleged stabbing. [See ECF No. 155-38 ¶¶ 3-4 (opining to a reasonable degree of medical certainty that examination of Plaintiff and review of his records "demonstrate that [Plaintiff] suffers from no signs or symptoms of any serious medical condition or injuries related to exposure to excessive violence, nor does he demonstrate the signs of any serious mental health or physical health conditions or symptoms" and "reveal no evidence that this inmate has ever suffered any physical injuries incurred . . . through a fight or disruption by other inmates or staff")].
Therefore, the undersigned evaluates the merits of the matter.
b. Eighth Amendment Violation
Before turning to Plaintiff's claim for violation of his Eighth Amendment rights by Cothran, the court addresses the preliminary matter of Cothran's objection to Plaintiff's submission of declarations made by Plaintiff, McBee, and Cromer. Cothran argues that the "record before this Court must consist of sworn testimony taken and made under oath before a Court Reporter or sworn before a notary public," further stating that within the SCDC system, notary publics are available to notarize declarations made by inmates. [ECF No. 178 at 3]. Cothran further argues, regarding McBee and Cromer's declarations, that these "are not properly before the Court, are not sworn statements and one of the narratives speaks of incidents not involving the Plaintiff." [ECF No. 173 at 3].
Fed. R. Civ. P. 56(c)(1)(A) provides that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by" citing to particular parts of materials in the record, including affidavits or declarations. An "affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Finally, 28 U.S.C. § 1746 provides:
Wherever, under any law of the United States or under any rule . .
. made pursuant to law, any matter is required or permitted to be supported . . . by the sworn declaration . . . or affidavit, in writing of the person making the same . . . such matter may, with like force and effect, be supported . . . by the unsworn declaration . . . in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form . . . .
"I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)".
Plaintiff, McBee, and Cromer, in addition to Plaintiff's mother, have submitted declarations, each stating they are competent to testify, they are testifying to matters based on personal knowledge, and they are submitting their declarations under penalty of perjury, certifying that the facts they have each set forth are true and correct to the best of their personal knowledge, pursuant to 28 U.S.C. § 1746, signing the same. [See ECF Nos. 174-5, 174-6, 174-7, and 174-18]. Thus, these declarations are properly considered by the court. To the extent these declarations include narratives of incidents not involving Plaintiff, such statements do not impact the court's analysis as to whether Cothran is entitled to grant of summary judgment.
Turning to Plaintiff's remaining claim against Cothran, the Eighth Amendment imposes a duty on prison officials "to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks omitted). "Gratuitously allowing the beating . . . of one prisoner by another serves no legitimate penological objective, any more than it squares with evolving standards of decency." Odom v. South Carolina Dept. of Corrections, 349 F.3d 765, 770 (2003) (quoting Farmer, 511 U.S. 833).
However, not "every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety." Farmer, 511 U.S. at 834. To establish a claim under the Eighth Amendment, a prisoner must satisfy two elements. "First, the deprivation alleged must be, objectively, 'sufficiently serious.'" Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, a prisoner must present evidence that the prison officials had a "'sufficiently culpable state of mind.'" Farmer, 511 U.S. at 834 (citing Wilson, 501 U.S. at 297). That is, that the defendant acted with deliberate indifference.
To be deliberately indifferent, a prison official must "know of and disregard an objectively serious . . . risk of harm." Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997). "[T]he official must be both aware of facts from which the inference could be drawn that a possibility of harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. A showing of mere negligence does not qualify as deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347 (1986); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).
Additionally, under the qualified immunity defense, "government 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). Qualified immunity ensures that "[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) ("Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.").
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.
The parties have provided the court with two starkly different versions of what occurred during Plaintiff's 16-month incarceration at TCI, precluding grant of summary judgment. First, there are sufficient facts for a reasonable jury to conclude that Plaintiff was exposed to a substantial risk of harm. As stated by the Fourth Circuit, "[a]n inmate need not show that she in fact suffered serious harm to prevail on this prong because 'the Eighth Amendment protects against future harm.'" Thompson v. Commonwealth of Virginia, 878 F.3d 89, 107 (4th Cir. 2017) (citing Helling v. McKinney, 509 U.S. 25, 33-34 (1993)). "Courts have 'plainly recognized that a remedy for unsafe conditions need not await a tragic event.'" Id. (citing Helling, 509 U.S. at 33-34).
Viewing facts in light most favorable to Plaintiff, there was a substantial risk that he would suffer harm. As stated above, Plaintiff has submitted his own declaration, as well as the declarations of other inmates incarcerated at TCI during the relevant time period, that paints of picture of pervasive and extensive prison gang violence, unchecked and at times condoned by prison staff, that includes specific death threats made to Plaintiff.
Cothran argues that unless a prisoner suffers "serious or significant physical or mental injury as a result of the challenged condition, he simply has not been subject to cruel and unusual punishment within the meaning of the Eighth Amendment." [ECF No. 158 at 80]. However, the Fourth Circuit has held, "[i]n order to demonstrate such an extreme deprivation, a prisoner must allege a serious or significant physical or emotional injury resulting from the challenged conditions, or demonstrate a substantial risk of such serious harm resulting from the prisoner's exposure to the challenged conditions." De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (citation omitted); see also Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) ("For a claim based on a failure to prevent harm, the plaintiff must show that he was 'incarcerated under conditions posing a substantial risk of serious harm.'"); Portee v. Felder, C/A No. 2:07-945-PMD-RSC, 2008 WL 2627003, at *2 (D.S.C. June 25, 2008) (rejecting argument that Odom "makes clear that the Plaintiff must plead and prove a serious or significant physical or emotional injury, i.e., greater than a de minimis injury, in order to prevail in a failure to protect case where the harm has already occurred and is not ongoing").
Second, a genuine dispute of material fact exists as to whether Cothran was deliberately indifferent to this substantial risk, where, as here, Plaintiff has submitted a declaration from his mother stating Cothran had actual knowledge of the threats made by gang members against Plaintiff and that Plaintiff requested protective custody. [ECF No. 174-18 ¶¶ 3-4]. Cothran fails to address this evidence and does not address what actions, if any, he took in response to the alleged calls. Therefore, a reasonable jury could find that he subjectively knew of the serious risk to Plaintiff and failed to take any steps to protect him from a known attack. Makdessi, 789 F.3d at 133 ("prison officials may not simply bury their heads in the sand and thereby skirt liability").
Additionally, Plaintiff has submitted affidavits from Cothran and Chvala, chief of security at TCI, Edward Staggers, a unit manager at TCI, and Lee Pack, III, also a unit manager at TCI, that could indicate the risk of prison gang violence was obvious. See Farmer, 511 U.S. at 842 ("Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence" and "a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious."). Cothran states that "[t]he Taw Caw Unit housed youthful offenders who often prove more prone to defiance and rules violations" [ECF No. 174-10 ¶ 26], and Chvala states that the "Taw Caw Unit did have numerous behavior-related lockdowns." [ECF No. 174-11 ¶ 8]. Staggers, who became the unit manager for the Taw Caw Unit in March 2017, states that "[d]uring this time there were staff shortages," that "[t]his unit had multiple short-term security lockdowns to address inmate behaviors," and that the unit "had a fair share of fights and contraband issues." [ECF No. 174-12 ¶¶ 5, 8; see also ECF No. 174-13 ¶ 9 (Pack stating that the unit had "issues of contraband and fights")]. However, the court need not rely on this evidence where, as here, Plaintiff has put forth evidence that Cothran had actual knowledge of threats made by gang members against Plaintiff.
Notwithstanding, "prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 844. "Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable" on a failure-to-protect claim. Id. at 845; see also Short v. Smoot, 436 F.3d 422, 428 (4th Cir. 2006) (concluding that an officer who responds reasonably to a danger facing an inmate is not liable under a deliberate indifference standard, even if the officer could have taken additional precautions, but did not). This standard reflects prison officials' "unenviable task of keeping [sometimes] dangerous [people] in safe custody under humane conditions[.]" Farmer, 511 U.S. at 845.
However, again, the court does not have on the record what steps, if any, Cothran took to protect Plaintiff following the alleged phone call from Plaintiff's mother. Therefore, the court is unable at this time to grant summary judgment on this issue. Likewise, at this time, grant of qualified immunity is inappropriate where it has been clearly established that the Constitution requires prison officials to take reasonable steps to protect inmates from assaults or the threat of assaults by other inmates, Farmer, 511 U.S. at 834, and the facts, taken in light most favorable to Plaintiff, indicate that Cothran failed to do so.
In a § 1983 claim, a defendant cannot be found liable under a theory of vicarious liability or respondeat superior. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (holding that there is no respondeat superior liability under § 1983). Thus, Cothran's status as the Warden of TCI and the overall supervisor of all TCI personnel does not subject him to liability. Although under § 1983, liability can be imputed to supervisory officials under certain circumstances, see Shaw v. Stroud, 13 F. 3d 791, 799 (4th Cir. 1994), it does not appear that Plaintiff is bringing such a claim. To the extent Plaintiff is doing so, Plaintiff has failed to put forth specific evidence or argument regarding Cothran's knowledge of his subordinates' actions, Cothran's response to such knowledge, or as to any causal link between Cothran's response and Plaintiff's alleged constitutional injury. See id. Therefore, such a claim would not survive motion for summary judgment.
Finally, based on the above analysis, the court rejects Cothran's argument that he is entitled to summary judgment because "Plaintiff's Complaint lacks an arguable basis in law and should be dismissed as to the remaining Defendant as frivolous under 28 U.S.C. §1915(e)(2)(B)(i) and §1915A(b)(1)(1999)." [ECF No. 178 at 10].
3. Motion for Preliminary Injunction
Plaintiff moves for preliminary injunction, informing the court that he is currently housed at LCI in the Restorative Housing Unit, that he "is being threaten[ed] in [this unit] by [two] newly arrived inmates . . . because he has informed correctional officers of their activities," and that these inmates have "been allowed to extort, bully, intimidate, and threat[en] Plaintiff and other inmates in the Restorative Housing Unit without any consequences from correctional officers who are fully aware of their actions." [ECF No. 185 at 2].
The Restorative Housing Unit is designed for inmates who do not meet the criteria for statewide protective custody but want added security. [ECF No. 187 at 4, ECF No. 187-1 ¶ 4].
Kendell, Warden of LBI, has responded that based on Plaintiff's complaints, an investigation has been conducted, including multiple searches of the Restorative Housing Unit, and no "contraband was found on the Restorative Unit in any search," no "evidence of a threat of harm was discovered or produced by" Plaintiff, and there was "no direct threat or substantiation of [Plaintiff's] allegations." [ECF 187-1 ¶¶ 5-6]. Additionally, one of referenced inmates has been transferred to the Restrictive Housing Unit ("RHU") at LCI, and the other is in the process of being transferred to another facility, although such transfer may take time. Id. ¶ 6.
The RHU is housed in the same building as the Restorative Housing Unit, but the two units are separated by a pod with locked doors in which an officer sits with ability to see into and monitor both units. [ECF No. 187-1 ¶ 4]. Additionally, inmates on the RHU are locked in their cells at all times, unlike the Restorative Housing Unit that is operated largely like a general population unit. Id.
Kendell informs the court that if Plaintiff "has continued concerns until the transfer is complete, he can elect to stay locked in his cell until the transfer is complete." [ECF No. 187-1 ¶ 7].
Given that the complained-of inmates have or will be transferred out of Restorative Housing Unit at LCI, that Plaintiff has voluntarily dismissed with prejudice all claims against all defendants associated with LCI in this case, and that Plaintiff has another suit pending before this court that concerns his incarceration at LCI in which the instant motion is also filed, the undersigned recommends denying as moot Plaintiff's motion for preliminary injunction. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends granting Plaintiff's motion for voluntary dismissal, dismissing with prejudice all claims against all defendants except Cothran, in his individual capacity, for violation of Plaintiff's Eighth Amendment rights for failure to protect him from prison gang violence. [ECF No. 163]. The undersigned further recommends denying Cothran's motion for summary judgment as to this remaining claim [ECF No. 155], and denying as moot Plaintiff's motion for preliminary injunction [ECF No. 185].
IT IS SO RECOMMENDED. February 20, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and 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
901 Richland Street
Columbia, South Carolina 29201
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).