Opinion
C. A. 4:22-3572-JDA-TER
05-16-2024
CLIFTON DONELL LYLES, Plaintiff, v. WARDEN DONNIE STONEBREAKER, KENNETH SHARP, WARDEN, RICHARD CHVALA, ASSOCIATE WARDEN, ASSOCIATE WARDEN BRIGHTHARP, MAJOR MEEKS, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
PROCEDURAL BACKGROUND
Plaintiff, a prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983on October 14, 2022, alleging a violation of his constitutional rights. Plaintiff filed an amended complaint on January 25, 2023, based on conditions of confinement while housed at Turbeville Correctional Institution (TCI) and Evans Correctional Institution (ECI). Plaintiff is currently housed at Livesay Correctional Institution. On December 13, 2023, Defendants filed a motion for summary judgment along with a memorandum and affidavits in support. (ECF No. 81). As the Plaintiff is proceeding pro se, the court issued an order on or about December 14, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response on January 5, 2024, and Defendant filed a reply on January 26, 2024. (ECF Nos. 85 and 91).
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 Rule 73.02(B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
The Amended Complaint superceded the previous original complaint. An amended complaint replaces the original complaint and should be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted).
Any claims raised in the response that were not alleged in the amended complaint will not be addressed. See Cleveland v. Duvall, No. 8:14-CV-04305-RBH, 2015 WL 6549287, at *2 (D.S.C. Oct. 28, 2015), aff'd, 647 Fed.Appx. 156 (4th Cir. 2016).
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. 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, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with ... affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ALLEGATIONS/ARGUMENTS
Plaintiff's allegations involve an alleged Eighth Amendment cruel and unusual punishment/conditions of confinement claim for the denial of regular opportunities for outdoor recreation or exercise from January 2020 through October 11, 2021, while housed at TCI. Further, Plaintiff alleges that he was denied outside recreation between October 11, 2021, and September 28, 2022, while housed at ECI. Plaintiff has named four officials at TCI including Warden Sharp, Associate Wardens Chvala and Brightharp, and Major Meeks. He has named Warden Stonebreaker at ECI. Plaintiff seeks monetary relief.
Defendants argue that Plaintiff cannot prove an actionable claim against them for denial of outdoor recreation or exercise. Defendants submitted the affidavits of Sharp, Brightharp, Meeks, and Chvala from TCI in support of the motion for summary judgment. They attest that during the 2020-2021 time frame, TCI was experiencing staff shortages that were made more challenging by the effects of the COVID-19 pandemic, with numerous employees missing time from work due to illness or quarantine requirements. (ECF Nos. 81-2 through 81-6). Therefore, during this time, the security staff did the best it could to make outdoor recreation and exercise available as frequently as possible and efforts were made to pull staff from other areas to make outdoor recreation available. Additionally, inmates also had the opportunity to exercise indoors, including in their cells, and were provided instructions for in-cell exercise. (See ECF Nos. 81-2 through 81-5). Further, Associate Warden Brightharp attests that while Plaintiff was in the general population at TCI, although not on a regular schedule, he would receive outside recreation dependent on the availability of manpower. (ECF No.81-4). Additionally, Brightharp and Warden Sharp attest that Plaintiff was employed from July 2020 until April 13, 2021, as a landscape laborer or horticulture laborer which allowed him frequent opportunities to be outside and to get physical exercise. (ECF Nos. 81-2 and 81-4). Prior to April 13, 2021, Braightharp attests that Plaintiff was on the Inmate Representative Council (IRC) at TCI but was removed from the IRC due to a disciplinary infraction he received on April 13, 2021. Copies of kiosk requests complaining that he was not allowed out of his cell to carry out duties as the IRC representative are attached to Brightharp's affidavit. (ECF No. 81-4 at 5-16). It is noted in the responses to Plaintiff's kiosk requests that he was no longer the IRC representative. Id. Plaintiff was placed in lock-up and charged with the disciplinary offense of Threatening to Inflict Harm on an Employee on April 13, 2021, for which he was convicted. On June 8, 2021, Plaintiff returned to lock-up for protective concerns and remained in a restricted housing unit for that reason. (ECF No. 81-4). Providing an inmate with outdoor recreation or exercise when in a lock-up unit falls under Security not under the area of Programs which is what Brightharp oversaw in 2020 and 2021. Id.
Associate Warden Chvala attests that he held the position of Associate Warden over operations at TCI from July 2020 until June 2023. (ECF No. 81-3). He currently holds the position of Associate Warden over Programs at TCI. Id. Plaintiff transferred to TCI on August 17, 2017, until October 11, 2021, when he was transferred to ECI. Id. From July 2020 through April 2021, Plaintiff was employed as a landscape laborer or horticulture laborer which enabled him to be outside on a regular basis multiple times per week during which he would get outdoor exercise carrying out those job duties. Id. When the institution was on lockdown, inmates could not receive regular opportunities for outdoor recreation or exercise but were not restrained and had sufficient room to exercise including sit-ups, push-ups, and other calisthenics in their individual cells. Id. Inmates are provided instructions for in-cell exercise and are not prohibited from exercising in their individual cells. Id. There were staffing shortages agency-wide including at TCI during the 2020-2021 time frame. Id. The staffing shortages and challenges to provide outdoor recreation or exercise were even more pronounced during the 2020-2021 time frame due to the COVID-19 pandemic which caused further difficulties in staffing due to employee absences for illness or quarantine when family members were ill with or had been exposed to COVID-19. Id. Further, there were difficulties in allowing inmates to congregate more than absolutely necessary due to concerns with Covid exposure among the inmates. Id. The security personnel at TCI did the best they could under those trying circumstances to allow for outside recreations when staffing and related circumstances permitted. Id. The opportunities for general population were sporadic. Id. In April 2021, Plaintiff was moved to restricted housing unit initially for disciplinary reasons and later for protective concerns. Id. Providing for outside recreation opportunities for inmates housed in restricted housing units was challenging given the manpower required. Id. Typically a minimum of four officers are required, including officers to restrain, remove, and search an inmate when the inmate leaves the cell and returns to the cell, an officer to supervise the recreation area, and officers to escort the inmate. Id. Based on staffing shortages, the manpower was often needed for more critical tasks to provide safety and security. Id. Chvala attests that he is not aware of any risk of injury to Plaintiff during his time at TCI nor was he ever deliberately indifferent to any risk of injury to him. Id. All actions were based on concerns for safety and security of the institution, including staff and inmates. Id.
Defendants argue that Plaintiff was allowed regular opportunities to exercise outside as a landscape/horticulture laborer ending on April 13, 2021, when he was placed in restricted housing due to disciplinary reasons. However, Defendants assert that he was in lock-up for only six months until his transfer to ECI. Defendants stated that at the period of time Plaintiff was at TCI, it was the height of the Covid-19 pandemic constituting extenuating circumstances that justify limitations on out-of-cell opportunities for public heath reasons and staffing limitations.
With regard to Plaintiff's allegations during his incarceration at ECI, Defendants submitted the affidavit of Donnie Stonebreaker who attests that he is employed by the SCDC as the Warden at ECI and has held that position since November 2017. (ECF No. 81-6). Stonebreaker is familiar with Plaintiff and the allegations he has made that he was denied opportunities for outdoor recreation or exercise while he was an inmate at ECI. Id. Staffing shortages were critical at ECI during the period of time that Plaintiff was housed at the institution. Id. The staffing shortages were particularly problematic during that time period because of he ongoing COVID-19 pandemic which caused frequent employee absences due to illness or exposure to the virus. Id. Warden Stonebreaker attests that the outdoor recreation areas at Evans were located behind the general population housing units where there was no supervision and the institution frequently did not have the manpower to provide the needed supervision of the outdoor recreation areas. (ECF No. 81-6). Warden Stonebreaker explained that there were manpower shortages during Plaintiff's time at ECI which impacted the ability to supervise outdoor recreation. Id. Additionally, Warden Stonebreaker attests that while inmates may not have received regular opportunities for outdoor exercise, they were generally allowed out of their cells on a daily basis subject to a lockdown or other extenuating circumstances. Id. Additionally, Warden Stonebreaker asserts that while in their cells, inmates are not restrained and “have sufficient room to exercise including sit-ups, push-ups and other calisthenics.” Id. Inmates are provided instructions for in-cell or other indoor exercise. Id. The ECI is in the process of constructing recreation areas on the yard where there will be supervision from yard officers. Id. While inmates did not receive regular opportunities for outdoor recreation or exercise, they did regularly have opportunities for indoor exercise and were generally allowed out of their cells on a daily basis subject to a lockdown or other extenuating circumstances. Id. Stonebreaker attests that he is not aware of any risk or injury to Plaintiff during this time at ECI nor was he deliberately indifferent to any risk of injury to Plaintiff. Id.
ANALYSIS
The Eighth Amendment expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To succeed on an Eighth Amendment claim for cruel and unusual punishment regarding the conditions of his confinement, a prisoner must prove (1) that he was deprived of a basic human need and (2) that prison officials were deliberately indifferent to that deprivation. See Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir.), cert. denied, 510 U.S. 949 (1993). The first prong of the Strickler analysis requires an objective showing that the deprivation was sufficiently serious, such that significant physical or emotional injury resulted from it, while the second prong is a subjective test requiring evidence that prison officials acted with a sufficiently culpable state of mind. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “When an inmate challenges the conditions of his confinement under the Eighth Amendment, the requisite ‘state of mind is one of deliberate indifference to inmate health or safety.' ” Odom v. S.C. Dep't of Corrs., 349 F.3d 765, 770 (4th Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted)).
a. Deprivation of a Basic Human Need
Lyles alleges that Defendants denied him access to out-of-cell recreation while at TCI and ECI from January 2020 through October 11, 2021. The court first examines whether these deprivations rise to the level of a “deprivation of a basic human need” such that they meet the first prong of the Strickler analysis. See 989 F.2d at 1379. “Prison conditions which ‘deprive inmates of the minimal civilized measure of life's necessities' may amount to cruel and unusual punishment. Williams v. Jackson, 2009 WL 363450, at *11 (D.S.C. Feb. 10, 2009), aff'd, 349 Fed.Appx. 867 (4th Cir. 2009) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Absent exceptional circumstances, “complete deprivation of exercise for an extended period of time violates Eighth Amendment prohibitions against cruel and unusual punishment.” Mitchell v. Rice, 954 F.2d 187, 191 (4th Cir. 1992). However, the Fourth Circuit has explained that it has “never held that denial of out-of-cell exercise opportunities is per se unconstitutional cruel and unusual punishment.” Id. Such claims require a “totality of conditions” analysis. Id. “In considering the totality of the circumstances surrounding the denial of exercise, we look at the overall duration of incarceration, the length of time for which prisoners are locked in their cells each day, and the practical opportunities for the institution to provide prisoners with increased exercise opportunities.” Lyles v. Stirling, 844 Fed.Appx. 651, 653 (4th Cir. 2021) (internal quotation marks omitted). To establish an Eighth Amendment claim, not only must an inmate have suffered a serious deprivation, but he must also show “a serious or significant physical or emotional injury resulting from the challenged conditions, or substantial risk thereof.” De'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (internal quotation marks omitted).
Plaintiff argues that Defendants did not address his allegations of a lack of regular showers. However, Plaintiff briefly mentions the lack of regular showers in his amended complaint but did not expound upon it. Plaintiff did not state how he was injured by the lack of regular showers. If the district court finds that the issue of a lack of showers was properly addressed, it is recommended that Defendants be given an opportunity to file a dispositive motion to address the issue. In order to assert a plausible § 1983 claim against any particular state actor, a “causal connection” must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id.
Defendants argue that due to staff shortages combined with staff being out for the Covid-19 pandemic, they did the best they could in allowing inmates out of their cells for outdoor recreation/exercise. Defendants attached a copy of Plaintiff's medical records. In the medical records provided, it is noted on two occasions Plaintiff was doing horticulture work. The notes indicate that on December 23, 2020, that Plaintiff's exercise consisted of “Cuts grass during spring summer and gardens during fall winter.” (ECF No. 81-7 at 211). In the comments from a medical visit on February 12, 2021, it was noted that the offender “works in horticulture and has a flare up of his right knee.” (ECF No. 81-7 at 209). Plaintiff was convicted of a disciplinary charge and placed in RHU and was later held in restricted housing for his own safety and security as requested by Plaintiff.
In the motion and memorandum for summary judgment, Defendants argued that Plaintiff was allowed outside recreation when he worked in horticulture at TCI. However, Plaintiff responded that Defendants are painting a falsified picture asserting that only certain special program inmates considered to be trustworthy that worked horticulture were allowed out of their cells to work throughout the lockdowns, and he was only allowed out “every blue moon” to help cut grass when the special program inmates complained about the work load. (ECF No. 85 at 2-2). Plaintiff attached Inmate Request forms complaining about not being allowed out of his cell due to shortage of staff at TCI on July 2, 2021, August 11, 2021, and September 24, 2021. The responses stated that his concerns would be forwarded to the Warden.
Plaintiff was also voted the Inmate Representative (IRC). Plaintiff contends that he wanted to run for the IRC position at TCI because the job required the elected inmate to be allowed out of his cell daily to be accessible to the inmate population to hear concerns. However, Plaintiff argues in his response that even though he was the IRC, he was not allowed out of his cell throughout his tenure and “incessantly” complained to the four TCI Defendants. Plaintiff attached copies of “Inmate Request” forms from the kiosk in which he complained about not being allowed out of his cell as the IRC on January 18, 2021, January 23, 2021, February 15, 2021, February 22, 2021, February 26, 2021, March 2, 2021, March 17, 2021.
Plaintiff was transferred to ECI on October 11, 2021. In the Request Form dated March 26, 2022, Plaintiff stated that he had gained 45 pounds since October 11, 2021, from not being allowed to exercise. In the Request form dated July 11, 2022, Plaintiff stated that he had been on complete lockdown since July 4, 2022. In the July 11, 2022, Request Form, Petitioner inquired as to why he had been on lockdown since before July 4, 2022, stating “The 4th Circuit Court of Appeals already ruled that my rights under the 8th [A]mendment to be free of cruel and unusual punishment is being violated. I am constantly in a state of frustration, anxiety, and mental stress.” (Id. at 23). The response to the Request Form stated it was due to “Covid quarantine.” (Id.). In the form dated May 31, 2022, Plaintiff stated that he had not received “any consistent outside recreation in over a year since coming to this yard. And over seven years since director Bryan Stirling took office.” (Id. at 22). Plaintiff alleged that the inmates were sitting in their cells 24 hours a day. (Id.). In the Request Form dated September 9, 2022, Plaintiff was located at ECI and stated that he had not had any recreation in four months and had only been allowed outside recreation “maybe 7 times” since arriving at ECI in October 2021. (ECF No. 85-1 at 24). The response was “Safety, service, and stewardship is the mission of the South Carolina Department of Corrections.” (Id.). Another response to a request regarding recreation was that “[s]afety and security are paramount. Recreation is not limited to the outside. If you need medical, sign up for sick call.” (Id.).
Additionally, in his response to summary judgment, Plaintiff refers to his previous case where the Fourth Circuit found an 8th Amendment violation. Plaintiff was denied recreation while at TCI. Plaintiff asserts that Defendants' actions in his previous case caused him injuries such as going from pre-diabetic to diabetic. (ECF No. 85 at 5. Plaintiff argues that “[t]he problem has been exacerbated due to the current Defendants' continued failure to allow Plaintiff to treat his injuries through exercise. Throughout these long running inappropriate lockdowns, Plaintiff has suffered several injuries.” Plaintiff states that he suffered several injuries from no exercise, including but not limited to, diabetes, hernia, obesity, high cholesterol, knee pain, and anxiety. (ECF No. 85 at 5). Plaintiff contends that he informed each one of the Defendants in this current case about his conditions and need for exercise. Plaintiff states that in order to obtain the needed exercise, he began pacing back and fourth in his cell, running in place, doing jumping jacks and pushups but “just as Plaintiff alleged in this previous suit, that ‘he could not perform in-cell exercises because the cell was to[o] small and that he had a cellmate', the crap hit the fan. Plaintiff's cellmate, Morandy, began telling him he could not exercise in the cell.” This led to arguments and eventually a fight. This cellmate was removed from the cell and Plaintiff restarted his in-cell exercises and had lost close to a total of sixty-pounds when he was transferred to ECI. (ECF No. 85 at 8).
As to Defendant Stonebreaker's assertion that Plaintiff could exercise in his cell while at ECI, Plaintiff states that there “is absolutely no room in those cells to do any of the exercises he mentioned in his affidavit as they are half the size of the cells at TCI which are also small themselves. The cells do not contain lockers so everything both cell-mates own is stored on the floor with a path carved out to get to the toilet or door. There is no room for both inmates to be on the floor at the same time and neither inmate can order the other to stay in his bunk while the other attempts to exercise. (Id. at 9). Plaintiff states that he informed staff about his previous diagnosis of diabetes due to not receiving outdoor recreation and he was not able to treat any of his medical conditions through exercise causing him to gain sixty-six pounds.
While at ECI, there was an employee shortage due to the COVID pandemic which prohibited outside recreation at times due to not having the manpower to observe the inmates outside. However, Defendants have not identified at which exact times during the sixteen months that Plaintiff was not allowed out of his cell for outdoor exercise were due to staff shortages related to Covid. The Defendants have not presented specific times that Plaintiff received outside recreation or worked outside in horticulture.
In Lyles v. Sterling, 844 Fed.Appx. 651 (4th Cir. 2021), the Fourth Circuit highlighted a plaintiff's inability to exercise in or out of his cell in vacating a district court's decision to grant prison officials' motion for summary judgment. See Lyles v. Sterling, 844 Fed.Appx. at 654. (observing that the plaintiff “could not adequately perform in-cell exercise because he was housed with another inmate” and because “his cell was too small to do the exercises given to him”). Here, Plaintiff has alleged that he could not exercise in his cell at TCI due to a cellmate's behavior and could not exercise in his cell at ECI due to the area being too small and having a cellmate.
Based on the record before this court, there is a genuine issue of material fact as to why Plaintiff was not allowed outside recreation/exercise for approximately sixteen months minus the seven times he asserts he was allowed outside recreation while at TCI and ECI. Plaintiff has asserted that he could not adequately perform incell exercises due to his cellmate and that his cell was too small to perform the exercises. The court has taken the global pandemic of COVID-19 into consideration but the Defendants have not shown when exactly the staff shortages occurred to not allow Plaintiff any reasonable outside recreation and if the staff shortages were directly related to the COVID -19 pandemic for the entire period that Plaintiff complains. Other than the time period Defendants assert Plaintiff worked Horticulture (but did not give any specific dates that he worked outside), the Defendants do not rebut the allegations that he was denied outside recreation during the sixteen months at TCI and ECI. Additionally, Plaintiff has alleged that he regained over sixty-five pounds during his time at ECI. A review of the medical records submitted by the Defendants reveal that while at TCI Plaintiff went from 253 pounds on March 23, 2020, to 261 pounds on March 22, 2021. While still at TCI, Plaintiff lost from 261 pounds on March 22, 2021, to 214.2 pounds on September 22, 2021. During this time, Plaintiff asserts that he was able to exercise in his cell at TCI because he did not have a cellmate. Plaintiff was transferred to ECI on October 11, 2021, and on October 4, 2022, when he was transferred from Evans to Livesay Correctional Institution he weighed 266 pounds. Therefore, based on the medical records, Plaintiff gained approximately 51.8 pounds while at ECI.
The last weight listed in the medical records while at TCI was on September 21, 2021, at 214.2 pounds. There is not a record of Plaintiff's weight on the date of transfer from TCI to ECI. The first record of Plaintiff's weight at ECI was 224 pounds on November 24, 2021. Therefore, the weight of 214.2 one month before being transferred to TCI was used in the calculation.
Construing the evidence in the light most favorable to Plaintiff Lyles, there is a genuine issue of material fact as to whether the lack of outside recreation caused Plaintiff to suffer a sufficiently serious deprivation of a basic human need thereby violating the Eighth Amendment.
It is well-settled that “[d]epriving inmates the opportunity to exercise can violate the Eighth Amendment's protection against cruel and unusual punishment,” Rucker v. Stirling, No. 1:19-CV-310-MGL-SVH, 2020 WL 5984435, at *5 (D.S.C. Mar. 6, 2020), adopted, 2020 WL 4381975 (D.S.C. July 31, 2020) (citing Rivera v. Mathena, 795 Fed.Appx. 169, 175 (4th Cir. 2019)), the record reflects that this is not an instance in which Plaintiff suffered a deprivation so significant as to constitute an Eighth Amendment violation. See Lyles v. Stirling, 844 Fed.Appx. 651, 654 (4th Cir. 2021) (finding a genuine issue of fact where plaintiff was denied out-of-cell exercise for more than ten months); Rivera, 795 Fed.Appx. at 175 (referencing Sweet v. S.C. Dep't of Corr., 529 F.2d 854, 866 (4th Cir. 1975) (en banc)) (explaining that a restriction to two exercise periods per week may not violate the Eighth Amendment if confined to a short period but may violate the Eighth Amendment if extended over a period of years). See Kesling v. Tewalt, 476 F.Supp.3d 1077, 1086-88 (D. Idaho 2020) (concluding that inmate-plaintiff's amended complaint failed to set forth a plausible Eighth Amendment claim when prison officials had developed and instituted policies to curb the spread of COVID-19); see also Swain v. Junior, 961 F.3d 1276, 1289 (11th Cir. 2020) (“We simply cannot conclude that, when faced with a perfect storm of a contagious virus and the space constraints inherent in a correctional facility, the defendants here acted unreasonably by ‘doing their best' ”).
QUALIFIED IMMUNITY
Defendants deny that any of the alleged conduct or conditions complained of by Plaintiff gives rise to a constitutional violation. However, Defendants assert that, even if this Court concludes that the facts are sufficient to establish a Constitutional claim, they are entitled to qualified immunity.
The doctrine of qualified immunity attempts to reconcile two potentially conflicting principles: the need to deter government officials from violating an individual's federal civil rights and the need for government officials to act decisively without undue fear of judicial second guessing.Akers v. Caperton, 998 F.2d 220, 225-26 (4th Cir. 1993).
To determine whether an officer is entitled to qualified immunity, the court must examine: “(1) whether a constitutional violation occurred; and (2) whether the right was clearly established at the time of the violation.” Est. of Jones v. City of Martinsburg, 961 F.3d 661, 667 (4th Cir. 2020); see Pearson v. Callahan, 555 U.S. 223, 236 (2009) (finding that courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand”).
Here, prison officials were aware of the risk to Plaintiff of failing to allow him to exercise based on the Eighth Amendment cruel and unusual punishment claim under §1983. As the Fourth Circuit found in Lyles v. Stirling, supra, “It is well-understood that ‘some form of regular outdoor exercise is extremely important to the psychological and physical well being of . . . inmates' Shorter v. Baca, 895 F.3d 1176, 1185-86 (9th Cir. 2018).” Therefore, Defendants are not entitled to qualified immunity.
CONCLUSION
Based on the above reasoning, it is recommended that Defendants' motion for summary judgment be denied. (ECF No. 81).
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 2317
Florence, South Carolina 29503
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).