Opinion
C. A. 22-86-BHH-PJG
11-09-2022
Rodney Shelton Kelley, Plaintiff, v. Lt. Felder; Sgt. Keyes, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
The plaintiff, Rodney Shelton Kelley, a self-represented pretrial detainee at the time of the events at issue, filed this civil rights action pursuant to 42 U.S.C. § 1983 against two jail officers. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendants' motion for summary judgment. (ECF No. 57.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motion. (ECF No. 58.) Plaintiff filed a response in opposition (ECF No. 68; Suppl., ECF No. 76), and the defendants replied (ECF No. 78).Having reviewed the parties' submissions and the applicable law, the court recommends that the defendants' motion be granted.
Plaintiff also filed a sur-reply. (ECF No. 81.) The Local Civil Rules make no provision for sur-replies. However, consideration of Plaintiff's sur-reply would not change the court's recommendation on the defendants' motion.
BACKGROUND
The following facts are taken in the light most favorable to Plaintiff, to the extent they find support in the record. Plaintiff alleges that prior to his detention, he was a victim of an attempted murder by a man named Shane Kelly. At the time of the events alleged in Complaint, Plaintiff and Shane Kelly were both housed at the Lexington County Detention Center, and records noted that they were on “keep away” status from each other. Plaintiff alleges that, nevertheless, the two of them were housed in same pod of the detention center. Plaintiff alleges that he spoke to multiple (unnamed) officers and requested to be moved, but his requests were refused. On or around December 29, 2018, Shane Kelly picked his cell door lock with a spoon, broke out of his cell, and assaulted Plaintiff. (See generally Compl., ECF No. 1.)
Following initial review, the court construed Plaintiff's Complaint as alleging claims pursuant to 42 U.S.C. § 1983 for failure to protect him from violence in violation of the Fourteenth Amendment's Due Process Clause. (Order, ECF No. 10 at 1.) No other claims were construed by the court as being raised by Plaintiff, and no party objected to the court's construction of claims. (ECF Nos. 25 & 29.) Plaintiff seeks monetary damages. (Compl., ECF No. 1 at 6.)
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving 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.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. 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 which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Defendants' Motion for Summary Judgment
1. Due Process Generally
It is well settled that pretrial detainees possess a constitutional right “to be free from punishment,” and this right, as derived from the Due Process Clause of the Fourteenth Amendment, protects such detainees from any form of punishment “prior to an adjudication of guilt in accordance with due process of law.” See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979). This settled principle applies “to substantive and procedural due process claims pursued by pretrial detainees.” Williamson v. Stirling, 912 F.3d 154, 174 (4th Cir. 2018); see Dilworth v. Adams, 841 F.3d 246, 251-53 (4th Cir. 2016) (applying Bell to a pretrial detainee's procedural due process claim); Ford v. Bender, 768 F.3d 15, 24-27 (1st Cir. 2014) (distinguishing types of due process claims); Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 250 (4th Cir. 2005) (assessing a pretrial detainee's substantive due process claim under the principles in Bell).
In the instant case, Plaintiff alleges that his due process rights were violated when the defendants failed to protect him from another detainee who was a known threat to Plaintiff. Claims of pretrial detainees against detention center officials regarding health, safety, and conditions of confinement are evaluated under the Due Process Clause of the Fourteenth Amendment rather than under the Eighth Amendment's proscription against cruel and unusual punishment. See Bell, 441 U.S. at 535 & n.16; Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). “The due process rights of a pretrial detainee are at least as great as the eighth amendment protections available to the convicted prisoner; while the convicted prisoner is entitled to protection only against punishment that is ‘cruel and unusual,' the pretrial detainee, who has yet to be adjudicated guilty of any crime, may not be subjected to any form of ‘punishment.' ” Martin, 849 F.2d at 870; see also Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992). However, “the fact that detention interferes with the detainee's understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into ‘punishment.' ” Bell, 441 U.S. at 537.
The United States Court of Appeals for the Fourth Circuit has held that the standard for determining whether detention center officials have violated a pretrial detainee's right to due process is deliberate indifference. See Hill, 979 F.2d at 991; but see Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015). Although these claims are analyzed under the Fourteenth Amendment, case law interpreting the standard of “deliberate indifference” under the Eighth Amendment is instructive. Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021) (“[E]ven though [the plaintiff's] claim arises under the Fourteenth Amendment, we have traditionally looked to Eighth Amendment precedents in considering a Fourteenth Amendment claim of deliberate indifference ....”).
The United States Supreme Court has held that for a pretrial detainee to establish an excessive force claim under the Fourteenth Amendment, he need not show that the officer was subjectively aware that the use of force was excessive; rather, he need only show that the force purposely, knowingly, or possibly recklessly used against him was objectively unreasonable. Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015). However, Kingsley did not address whether this standard applies to other claims by pretrial detainees pursuant to the Fourteenth Amendment, and, to date, the Fourth Circuit has not considered this issue. See Mays v. Sprinkle, 992 F.3d 295, 300 (4th Cir. 2021) (declining to decide whether a pretrial detainee must satisfy the subjective component of the deliberate indifference standard); cf. Gordon v. Cnty. of Orange, 888 F.3d 1118 (9th Cir. 2018) (extending Kingsley to medical claims by pretrial detainees pursuant to the Fourteenth Amendment); Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (extending Kingsley to conditions of confinement claims by pretrial detainees pursuant to the Fourteenth Amendment); Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc) (extending Kingsley to failure-to-protect claims by pretrial detainees pursuant to the Fourteenth Amendment); see also Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018) (noting a split among the circuit courts of appeal and collecting cases). The court will apply both prongs of the deliberate indifference standard in this case, as the relevant Fourth Circuit case law has not been overruled. See, e.g., Shover v. Chestnut, 798 Fed.Appx. 760, 761-62 (4th Cir. 2020) (applying both prongs of the deliberate indifference standard to a pretrial detainee's medical claim without discussing Kingsley). Even if the Fourth Circuit were to extend Kingsley to eliminate the subjective component previously required for Plaintiff's claims, however, he still fails to satisfy the objective component on this record.
Generally, to establish a claim based on alleged deliberate indifference, an inmate must establish two requirements: (1) objectively, the deprivation suffered or injury inflicted was “sufficiently serious,” and (2) subjectively, the prison officials acted with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “What must be established with regard to each component ‘varies according to the nature of the alleged constitutional violation.' ” Williams, 77 F.3d at 761 (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)). Objectively, the court must 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. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36 (1993).
2. Failure to Protect/Deliberate Indifference to Safety
Prison officials have a duty to maintain “reasonable measures to guarantee the safety of the inmates,” which includes “a duty to protect prisoners from violence at the hands of other prisoners.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (quoting Farmer, 511 U.S. at 832, 834). However, “not every injury suffered by a prisoner at the hands of another translates into constitutional liability for prison officials responsible for the victim's safety.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015). In the context of a claim based on a failure to prevent harm, the objective prong of the Farmer test requires a plaintiff to show that he was “incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834; see also Makdessi, 789 F.3d at 133. The subjective prong, on the other hand, requires the plaintiff to show that prison officials acted with deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834; see also Makdessi, 789 F.3d at 133. In other words, the official must “consciously disregard” a known risk of serious harm. Anderson v. Kingsley, 877 F.3d 539, 544 (4th Cir. 2017) (quoting Farmer, 511 U.S. at 839). “[Deliberate indifference entails more than ordinary lack of due care for the prisoner's interests or safety, and more than mere negligence, but less than acts or omissions done for the very purpose of causing harm or with knowledge that harm will result.” Makdessi, 789 F.3d at 133 (quoting Farmer, 511 U.S. at 835) (internal quotation marks and alterations omitted); see also Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995) (“[Deliberate indifference in this context lies somewhere between negligence and purpose or knowledge: namely, recklessness of the subjective type used in criminal law.”) (citing Farmer, 511 U.S. at 836). Thus, “the official must both 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.
a. Defendant Felder
Defendant Felder provides sworn affidavit testimony that, while he was on duty on the night of the incident, he was working in the booking area, and was only called to the D-Pod when another officer requested backup to assist with breaking up the fight between Shane Kelly and Plaintiff. (Felder Aff. ¶ 4, ECF No. 57-2 at 2.) He also testifies that he was not involved in either Plaintiff's or Shane Kelly's placement in the D-Pod. (Id. ¶ 6, ECF No. 57-2 at 2.) Plaintiff clarifies in subsequent filings that Felder was the supervisor on the night of the assault and was therefore “responsible for all the inmates['] safety.” (Pl.'s Resp. Opp'n, ECF No. 76 at 6; Pl.'s Decl., ECF No. 42 at 3.) He also argues that Felder “refused to move [Plaintiff] from a potentially lethal situation” despite Plaintiff's complaints to Master Detention Deputy James Murphy, Felder's subordinate. (Id. at 3-4.)
To the extent Plaintiff's unverified response relies upon statements made to Murphy to show that Felder knew that Shane Kelly had previously broken out of his cell, Plaintiff has provided no admissible evidence to establish that Felder was aware of this information, and Murphy has provided sworn affidavit testimony averring that Plaintiff's allegations are not true. (Murphy Aff., ECF No. 78-1 at 2.)
The law is clear that personal participation of a defendant is a necessary element of a § 1983 claim against a government official in his or her individual capacity. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). Moreover, a claim based upon the doctrine of respondeat superior does not give rise to a § 1983 claim. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-94 (1978). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. As the Iqbal Court observed, because masters do not answer for the torts of their servants in § 1983 cases, “the term ‘supervisory liability' is a misnomer.” Id. at 677.
While Fourth Circuit precedent recognizes that supervisory officials may be held liable in some circumstances for constitutional injuries directly inflicted by their subordinates, Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994), certain criteria must be demonstrated to trigger such liability. A plaintiff must show that the supervisory official (1) was actually or constructively aware of a risk of constitutional injury, (2) was deliberately indifferent to that risk, and (3) that an affirmative causal link exists between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999).
Accordingly, as the record reasonably permits only the conclusion that Felder had no role in the housing assignments of Plaintiff and Shane Kelly, and as he was not present in the D-Pod when the assault took place, the personal participation component of Plaintiff's failure to protect claim cannot be met. See Iqbal, 556 U.S. at 676. As to Felder's role as a supervisor, Plaintiff has failed to produce any admissible evidence such that a reasonable jury could find that Felder had knowledge of a risk of constitutional injury to Plaintiff and that Felder was deliberately indifferent to that risk. See Carter, 164 F.3d at 221. Accordingly, Defendant Felder is entitled to summary judgment as to Plaintiff's claims.
b. Defendant Keyes
Defendant Keyes provides sworn affidavit testimony and evidence that he was not on duty on the date of the incident in question. (Keyes Aff. ¶ 3, ECF No. 57-6 at 1.) In his response in opposition to the defendants' motion for summary judgment, Plaintiff clarifies that Defendant Keyes was the staff member who moved him into D-Pod on December 10, 2018 where inmate Shane Kelly was already housed, despite their designated “keep away” status stemming from Shane Kelly's attempt to kill Plaintiff prior to their incarceration at the detention center. (Pl.'s Resp. Opp'n, ECF No. 68 at 2.) Thus, Plaintiff argues, Keyes failed to protect him from harm by knowingly placing Plaintiff in the same housing area as a “keep away” inmate. (Id. at 3.) Keyes avers that he was not responsible for transferring either Plaintiff or detainee Shane Kelly to the D-Pod cells that they occupied on the date of the incident and provides detainee booking logs as evidence. (Keyes Aff. ¶ 4, ECF No. 57-6 at 2; Detainee Logs, ECF No. 57-5.) However, Plaintiff argues in his response that Keyes was present at the time of his booking and was aware of Plaintiff's placement in the D-Pod on December 10, 2022. Although these statements are unverified, Plaintiff also submits a declaration under penalty of perjury stating that Keyes booked him into the D-Pod on the second shift on December 10, 2018. (ECF No. 42 at 3.) This dispute, however, is not material because Plaintiff fails to present evidence in this record from which a reasonable jury could find that locking a “keep away” inmate in the same housing area as Plaintiff with different recreation times presented an objectively unreasonable risk to Plaintiff. Cf, Castro, 833 F.3d at 1071 (providing the elements of a pretrial detainee's failure to protect claim postKingsley as construed by the Ninth Circuit); Kemp v. Fulton County, 27 F.4th 4914, 497 (7th Cir. 2022) (“We hold, as the Ninth Circuit did in Castro, that the defendant officer must intend to carry out a certain course of actions; negligence is not enough. At that point, the remaining question is whether that course is objectively reasonable.”); Westmoreland v, Butler County, Kentucky, 29 F.4th 721, 729 (6th Cir. 2022) (following the Ninth Circuit and holding that “a defendant officer must act intentionally in a manner that puts the plaintiff at substantial risk of harm, without taking reasonable steps to abate that risk, and by failing to do so actually cause the plaintiff's injuries”).
As discussed above, to the extent that Plaintiff's unverified response relies on statements made or computer screenshots allegedly shown to him by Master Detention Deputy James Murphy, Murphy provides sworn affidavit testimony that Plaintiff's allegations are not true. (Murphy Aff., ECF No. 78-1 at 2.)
Moreover, the defendants have provided evidence that while, ideally, detainees who are to be kept away from each other should be housed in separate pods, circumstances sometimes dictate that detainees be housed in the same pod but on different tiers, and that this protocol is in compliance with Lexington County Detention Center policy. (Felder Aff. ¶ 7, ECF No. 57-2 at 2.)
“[T]he elements of a pretrial detainee's Fourteenth Amendment failure-to-protect claim against an individual officer are: (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff”s injuries.” Castro, 833 F.3d at 1071.
Importantly, Plaintiff has failed to produce any admissible evidence showing that Defendant Keyes subjectively knew of and disregarded a risk of harm to Plaintiff that was, objectively, sufficiently serious. See Farmer, 511 U.S. at 834. Plaintiff makes no allegation that Shane Kelly and Plaintiff were allowed to freely move about the housing unit at the same time or otherwise have unfettered, unsupervised access to one another; rather, the record reflects that the attack occurred only after Shane Kelly broke out of his locked cell. Although Plaintiff summarily argues in his unverified response that Shane Kelly had broken out of his cell previously, and that he told this to Master Detention Deputy James Murphy (Pl.'s Resp., ECF No. 76 at 3), Plaintiff provides no evidence to establish that the defendants knew that Shane Kelly had a history of breaking out of his cell such that a reasonable jury could find that Shane Kelly presented a substantial risk of serious harm to Plaintiff. See Farmer, 511 U.S at 837; see also Street v. Corr. Corp. of Am., 102 F.3d 810 (6th Cir. 1996) (finding that incarcerating a prisoner in the same unit of the prison as the victim was not deliberate indifference where both inmates had a history of violence); cf. Walton v. Dawson, 752 F.3d 1109 (8th Cir. 2014) (holding that the Eighth Amendment's knowledge requirement was satisfied when the record showed that the defendant knew that the jail cells were not being locked at night and knew that leaving the cells unlocked was an obvious, substantial risk to inmate safety); Clark v. Stirling, C/A No. 0:18-2257-SAL, 2020 WL 1283711, at *3 (D.S.C. Mar. 18, 2020) (holding that only the defendants who had “subjective knowledge” of the conditions giving rise to a substantial risk of serious harm-e.g., that the locks in the unit were inoperable for years and that the violence in the unit had increased because of such inoperability-were not entitled to summary judgment). Accordingly, Plaintiff has failed to forecast evidence sufficient to demonstrate a violation of his constitutional rights, and Defendant Keyes is therefore entitled to summary judgment on this claim.
RECOMMENDATION
Based on the foregoing, the court recommends that the defendants' motion for summary judgment be granted. (ECF No. 57.)
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).