Opinion
Civil Action 2:21-00843-DCN-MGB
06-26-2019
Eddie Pilcher, Plaintiff, v. Warden Nelson; Major A. Thomas; Lt. Levels, Jr.; Sgt. Coaxum; SCDC; Agent Martin, SCDC Police Service, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Eddie Pilcher is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”). At the time of the underlying events, Plaintiff was housed at Lee Correctional Institution (“LCI”) in Bishopville, South Carolina. He had been placed in the Restrictive Housing Unit (“RHU”) because of a disciplinary infraction. On March 24, 2021, Plaintiff, proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983, alleging the violation of his rights under the Eighth Amendment. Plaintiff also asserts a state law claim for negligence. Defendants Warden Nelson; Major A. Thomas; Lt. Levels, Jr. (properly denominated “Level”); and Sgt. Coaxum are or were employed by SCDC at LCI. They are sued in their official and individual capacities. Defendant SCDC is sued in its capacity as a governmental entity. Defendant Agent Martin is employed by SCDC and sued in his official and individual capacities. (Dkt. No. 1, 2-4.) In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., Plaintiff's complaint was referred to the undersigned Magistrate Judge.
Currently pending before the Court is a motion for summary judgment filed by Defendants. (Dkt. No. 69.) For the reasons set forth herein, the undersigned recommends Defendants' motion be denied in part and granted in part.
I. BACKGROUND
Plaintiff alleges that on June 16, 2019, he received information from a Blood gang member and fellow inmate that Defendant Coaxum and another inmate approached the Blood gang and offered $2,000 to “take care of” Plaintiff. According to Plaintiff, Defendant Coaxum and the inmate told the gang members that Plaintiff was “sending contraband officers to shake them down.” (Dkt. No. 1, 10.) Plaintiff states that he immediately completed a Request to Staff Member (“RTSM”) form and sent it to Defendants Nelson, Thomas, and Martin on June 16, 2019, stating that his life was in danger. Petitioner also states that he informed Defendant Levels about the alleged “hit.” (Dkt. No. 72, 5.)
The Bloods is one of the largest and most violent associations of street gangs in the United States. The Bloods' main source of income is street level distribution of powdered and crack cocaine and marijuana. The gangs are also involved in other types of criminal activity, including assault, auto theft, burglary, carjacking, drive-by shooting, extortion, homicide, identification fraud, and robbery. Drugs and Crime Gang Profile, Nat'l Drug Intelligence Cntr., U.S. Dep't of Justice (February 2003) (accessed April 2, 2022).
Plaintiff was housed at Lieber Correctional Institution at the time he filed the within action. Plaintiff currently is housed at Broad River Road Correctional Institution in Columbia, South Carolina.
Plaintiff alleges that on June 18, 2019, he was put in restraints and taken to an office to use the phone to call his “ole lady.” According to Plaintiff, an RHU inmate worker entered the office and punched Plaintiff in the mouth. (Dkt. No. 1, 10.) Plaintiff states that Defendant Levels “jumped up and grabed me and told me to chill I got you.” (Dkt. No. 1, 11.) (errors in original.) Plaintiff states that he “had to come out of my handcuff to defend myself, but Lt. Level got in my way and called 6 or 7 officers.” (Id.) Plaintiff states the officers restrained him but let the inmate worker go. According to Plaintiff, the RHU inmate worker and Defendant Levels offered to pay Plaintiff to keep quiet about the incident. (Id.)
Plaintiff had lost telephone privileges as a result of his disciplinary infraction, so did not have access to telephones installed for inmates' use. Aff. of Oscar Level Jr., ¶ 6. (Dkt. No. 69-2.)
Plaintiff alleges that he submitted another RTSM to the Warden on June 19, 2019, explaining that he had been assaulted. (See Dkt. No. 1, 16.) On June 21, 2019, Plaintiff's June 16, 2019 RTSM was denied, with the comment, “You have sent numerous RTS on the same topic. We are aware of your allegations but cannot provide any information to cooberate your allegations.” (Dkt. No. 1, 14.) (errors in original.) On June 26, 2019, Plaintiff was informed by Defendant Thomas that the RHU inmate worker had been terminated from his RHU assignment. (Dkt. No. 1, 16.) Plaintiff contends that he submitted Step 1 and Step 2 grievances regarding this matter, and that the Grievance Coordinator lost his Step 2 form. (Dkt. No. 1, 11-12; see Dkt. No. 1, 17.) Plaintiff reports that he contacted Police Services about Defendant Coaxum having a “hit” out on Plaintiff and about being assaulted. According to Plaintiff, Defendant Martin covered up the crime. (Dkt. No. 1, 12.) Plaintiff alleges that SCDC failed to protect him from violence known of prior to the assault. (Id.) Plaintiff further alleges that “no inmate is suppose to be around a lock-up inmate in restraints and 2 officers are suppose to be with me at all times. This did not happen, and is how another inmate was able to gain access to assault me.” (Dkt. No. 1, 13.) Plaintiff seeks compensatory and punitive damages.
On December 20, 2021, Defendants filed a motion for summary judgment. (Dkt. No. 69.) On December 21, 2021, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 70.) Plaintiff filed a response in opposition to Defendants' motion on January 6, 2022, to which Defendants filed a reply on January 11, 2022. (Dkt. Nos. 72, 73.) Plaintiff filed a sur-reply on January 24, 2022. (Dkt. No. 74.) Defendants' motion has been fully briefed and is ripe for review.
II. LEGAL STANDARDS
A. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Pub'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a court considers the motion, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
B. Conditions of confinement under the Eighth Amendment
Title 42, United States Code, Section 1983 provides a remedy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See City of Monterey v. Del Monte Dunes, 526 U.S. 687, 707 (1999).
“The Constitution ‘does not mandate comfortable prisons,' but neither does it permit inhumane ones, and it is now settled that ‘the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment[.] In its prohibition of ‘cruel and unusual punishments,' . . . the Amendment . . . imposes duties on [prison] officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates[.]'” Farmer v. Brennan, 511 U.S. 825, 832 (1994)(internal citations omitted)(citing cases).
C. South Carolina Tort Claims Act
S.C. Code Ann. § 15-78-40 of the South Carolina Tort Claims Act (“SCTCA”) provides that “[t]he State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained [within the Act].” The SCTCA “constitutes the exclusive remedy for any tort committed by an employee of a governmental entity” except when it is proved “that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” A person bringing an action against a governmental entity under the provisions of the SCTCA “shall name as a party defendant only the agency or political subdivision for which the employee was acting and is not required to name the employee individually[.]”
III. DISCUSSION
A. Evidence
Having considered the applicable legal standard, the undersigned next considers the evidence most relevant to the merits of Plaintiff's Eighth Amendment claims.
1. Plaintiff's Medical Records
06/18/2019 Nurse Visit
Reason for visit: Assaulted
Statement of complaint (in patient's words): I/M stated, “I'm suffering from public humiliation. I need something for pain.”
Subjective:
Affected body part? face
How did it occur? I/M stated another I/M punched him in the face
When did it occur? 1 Hour
Patient complains of: pain,
I/M stated that he was punched in the left upper corner of his lip by another
I/M while handcuffed. ....
I/M was escorted to medical after being assaulted by another I/M while handcuffed. I/M stated that he was punched in the left upper corner of his mouth. A small < 1 cm cut appeared on the inner upper left corner of his lip. No active bleeding. No other signs of trauma. I/M remained A+O x 4, PERRL, VSS, MAE, and appeared to be in no distress. I/M claimed to have been in pain. (2) 325 mg Acetaminophen tablets were given to him. Advised the I/M to return to medical if any/further assistance is needed. I/M was left in the Emergency Room with RHU staff personnel, Shift Supervisors Lt. Hatten and Captain McCullough. I/M waiting to be assessed by psych personnel.(Dkt. No. 72-2, 5-6.)
2. Plaintiff's Grievances
Request to Staff Member Form dated 6/19/19 to Warden Nelson
I was physically assaulted yesterday while in restraints by a Inmate worker on R.H.U. This assault occurred while i was in the office with Lt. Level using the phone I was told by Lt. Hatten and Capt. McCoulgh that “T.Y.” Inmate work was fired and was coming to lock-up for assaulting me. Lt. Levels also
told me that he was writing this incident up. But today inmate worker “T.Y.” is still up here working.
DISPOSITION BY STAFF MEMBER:
Inmate worker was terminated from RHU assignment.
(Signed on 6/26/19 by Arenda Thomas, Major)(Dkt. No. 72-2, 15.) (errors in original.)
Request to Staff Member Form dated 6/16/19 to Warden Nelson
I received intell. that a Sgt. and Inmate has approached members of the Blood gang and offerred $2,000 to them if they took care of me. This Sgt. & Inmate told the Bloods that I sent a request to Contraband about all Bloods on this lock-up. They told me that they know it's not true because I don't know all of them, but anyways I feel as if my life is in danger, and now I'm requesting to be sent back to the adjustment unit at lieber. I've refused P.C. numerous times at Kirkland, but now i see that it's where i need to be. I can not beat the inmates and officers too. I'm requesting immediate action! If somebody come and see me I'll give them the names of the Sgt. & Inmate who has the hit out on me, and I'll submit to a poly graph test too. Also they need to take one now today 17th some Contraband officers go in certain rooms. Sir this Sgt & Inmate is trying to get me murdered. Help me!
DISPOSITION BY STAFF MEMBER:
SCDC Policy GA-06.04 REQUEST TO STAFF MEMBER states:
2.4 Inmates are prohibited from sending duplicate or similar RTSM to multiple staff members in a manner that burdens the system.
2.6 Inmate noncompliance with the requirements of this policy may result in the ARTSM/RTSM being returned unanswered to the inmate.
You have sent numerous RTS on the same topic. We are aware of your allegations but can not provide any information to cooberate your allegations. (Signed on 6/21/2019 by K. [?], CC Investigator)(Docket No. 72-2, 2-3.)(errors in original.)
Request to Staff Member Form dated 6/30/19 to Warden Nelson
I submitted you a request on 6/16/19 about Sgt. “Coaxum” and a inmate R.H.U. worker “K.O.” went to members of the Bloods and lied on me & put out a $2,000.00 hit on me. You rejected my request stating that I've wrote numerous request on this topic. Sir, that is false! I also requested to go to the adjustment unit at Lieber. Now on 6/18/19 I was physically assaulted by a
R.H.U. worker while i was in hand cuffs using the phone. Why did you forward that request to the major, but rejected the one where i explained to you what was going on? My life is in danger. I'm requesting to go to the adjustment unit & I'm willing to submit to a poly graph test on all request I've sent you regarding this issue.
DISPOSITION BY STAFF MEMBER:
SCDC Policy GA-06.04 REQUEST TO STAFF MEMBER states:
2.4 Inmates are prohibited from sending duplicate or similar RTSM to multiple staff members in a manner that burdens the system.
2.6 Inmate noncompliance with the requirements of this policy may result in the ARTSM/RTSM being returned unanswered to the inmate.
(signed on 7/2/2019 by K. [?]. Stamped “REJECTED”)(Dkt. No. 72-2, 17-18.)
Inmate Request - General (Dated 2/10/20; Request Date 01/10/20)
Request Details: Re: Sgt. Coaxum putting hit on me & Ofc. “Cadet” Ford assaulting me. I was summoned on 9/9/19 to go speak with agent Martin regarding the above mentioned. He took notes but to date nobody has gotten back with me. Also, I submitted yall a missive on 9/16/2019 that was never replyed to. If possible can you tell me the status and what do I need to do to file criminal charges.
Disposition: Complete
Officer: Lisa Eklund
Disposition Dated: 02/10/20 11:57
Request Responses
Date Author Note
02/10/20 c062844 This investigation was closed 6/7/20(Dkt. No. 72-2, 26.) (errors in original.)
3. Plaintiff's Correspondence
SCDC Division of Health Services - Inmate Correspondence
TO: E Pilcher, SCDC # 303616
INSTITUTION: Broad River Correctional Institution
FROM: Jenny Ardis, Administrative Coordinator
SUBJECT: Medical CO-PAY Refund: Submitted - I/M'S Letter Dated: 6/30/19
Dated: July 17, 2019
I have submitted a refund request to Accounts Payable - H/Q'S, Wednesday, July 17, 2019, for $10.00 to be refunded back to your account. This is due to you for accidently being charged in error for two Medical Copayments, sick-call, emergency encounter visits. One of these emergency visits was for you being assaulted by another inmate while handcuffed, being escorted by an officer. The other emergency visit was as a result of you being involved in a SCDC transport van accident. This incurred 06/19/19 & 06/06/19 under ENC: #92212 & ENC: #68106.(Dkt. No. 72-2, 20.)
4. Plaintiff's Mental Health Records
Visit Type: Crisis Visit
Encounter Dated: 10/13/2019 04:00 PM ....
Subjective Information
Explanation: IM reported to be doiing okay today. He continues to perseverate over issues he has with staff and inmates at Lee and how staff is leaving him in harm's way intentionally. IM wants QMHP to contact Agent Martin with SCDC Police Services as he reportedly spoke with this agent on 9/9/19.
Current Assessment
Assessment:
Anxiety is significant. Depression is not significant. Suicidality is not significant. The patient is cooperative and communicative.
ASSESSMENT/DIAGNOSIS
Psychosocial Stressors
Severity: Moderate
Problem Type N/Yes Description
Primary Support Group No
Social environment Yes Inmate said he is anti-social
Education Yes No h/s and GED
Legal system/crime Yes Inmate demonstrate resistance in tx and behavior management-inmate has spent many years in prison an
Assessing healthcare Yes Mental health
Other Yes Self-injurious behavior
Plan and Additional Information
Plan/Additional Information:
QMHP emailed Agent Martin about status of IMs case. Continue level of care.(Dkt. No. 72-2, 22-24.) (errors in original.)
5. Plaintiff's Declaration of Inmate Perry Lee Smith, Jr.
I was housed at Lee Correctional during the time. I overheard Sgt J. Coaxum walking around the wing saying to all the inmates in RHU that “Pilcher” was snitching on a certain group of gang memmebers also idintified as Bloods, also that he was sending contraband team to shake down them. Also on 6/1/19 inmate worker “Ty” came on the wing, also to my Room #78 and stated “that he just knocked that nigga out in the mouth” refering to Mr. Eddie Pilcher.
(Signed under penalty of perjury by Perry L. Smith, Jr. on August 8, 2021.)(Dkt. No. 72-2, 9.) (errors in original.)
6. Plaintiff's Declaration of Eddie Pilcher
2.) On June 16, 2019 I received intel from inmate Blackwell, who was in cell #80 that Sgt. Coaxum approached him and offered $2000.00 if they took care of me.
3.) Inmate Blackwell declined her offer. So I/M Worker Dukes also approached Mr. Blackwell. he was also rejected.
4) Sgt. Coaxum was going around lock-up telling everybody that i was sening contraband to all of the Bloods Cell (Alleged gang member)
5) After inmate Blackwell told me this I submitted requests to the Warden, Major and the investigators on 6/16/2019.
6) On the following morning 6/17/2019 after I/M Blackwell refused Sgt. Coaxum and I/M Dukes advance, Sgt. Coaxum stayed over into the morning shift and contraband shook down several inmates cells including inmate Blackwell.
7.) R.H.U. Worker T.Y. brought inmate Blackwell a tray that was “allegedly” full with something other than food. A few mins. later officers ran up the step and entered Cell #80. No camera, words or demands to come to the door.
8) On 6/18/2019 i was requesting to use the phone. Lt. level pull me out the showers in restraints and took me to the Capt. office to call my lady[.]
9) While in the offices with Lt. level using the phone inmate Worker T.Y. entered the office and assaulted me.
10) Lt. level and inmate T.Y. tried to bribe me so that i wouldnt say nothing. Lt. levels had T.Y. go get help. The following officers responded: Sgt. Smith B/M; Ofc. Yates B/M; Ofc. Frison B/M and Ofc. Jackson B/F.
11) I was taking to medical by RHU staff and Lt. Hatter and Capt. McCullough. See attached Exhibits 1-9. [(Dkt. No. 72-2, 14-27.)] (signed by Eddie Pilcher 1/3/22.)(Dkt. No. 72-2, 11-13.) (errors in original.)
7. Defendants' Affidavit of Oscar Level, Jr.
4. I do not recall any specific interaction and/or conversation with Pilcher at Lee Correctional. I only recall Pilcher as one of many inmates assigned to RHU during my time assigned to Lee Correctional in 2019. ....
5. During my short time assigned to Lee Correctional, I do not recall escorting Pilcher, or any inmate, up front or to an office to make personal phone calls. Phone privileges are generally taken from inmates who are assigned to RHU for violating SCDC rules and regulations and therefore they would not be allowed to make phone calls. Attorney/Legal phone calls and/or visits are not subject to sanctions.
6. According to documents, on May 29, 2019, Pilcher was administratively convicted of Striking an Employee with/without a weapon and one of his sanctions was loss of telephone privileges and therefore was unable to make personal phone calls during this time. See exhibit A, SCDC public website details. [(Dkt. No. 69-2, 7-8.)]
8. As stated above, I do not recall escorting Pilcher, or any inmate for that matter, to an SCDC office to make a personal phone call at any time when I was assigned to RHU at Lee Correctional.
9. At the time of Pilcher's alleged incident, I would have had approximately four (4) years' experience as an officer of SCDC. I am aware of SCDC policies/procedures regarding RHU.
10. Pilcher asserts I called “6 or 7 officers” to respond to this alleged incident. Pilcher appears to indicate a call for first responders was made. There is no documentation to support his assertion. Generally, when first responders are called to help with a situation, incident reports and/or Mins reports must be submitted from all involved. As stated previously, I do not recall escorting Pilcher, or any inmate, to an SCDC office to make personal phone calls nor do I recall requesting first responders be activated to respond to an incident in the Captains' Office, or any SCDC office.
11. I did not offer to pay Pilcher to “be quiet.”
12. During my normal course of duties as an SCDC officer, I have escorted inmates for attorney/legal visits and/or telephone calls while working in RHU. Those visits/phone calls are arranged by others and RHU would be informed of date and time. Attorney/legal phone calls and visits are conducted in private as required by law.
14. As stated above, I did not attempt to bribe Pilcher. I do not recall escorting any inmate, including Pilcher, to an SCDC office to make personal phone calls. As far as I am aware, I did not “fail to protect” Pilcher from an alleged assaulter.
15. Pilcher claims that general population inmates are not allowed to be around RHU inmates in restraints. This is deceptive, RHU has general population inmates assigned to work in RHU. RHU inmate workers perform job assignment functions such as haircuts, sweeping, moping [sic], cleaning shower areas, and trash collection. During the performance of their work duties, they may be around RHU inmates in restraints. Classification determines and assigns general population inmates to work in RHU.
16. As far as I am aware, Pilcher did not inform me he “feared for
his life” or that another officer “bribed a gang member to take care of him.” ....
(Signed by Oscar Level, Jr. on December 15, 2021.)(Dkt. No. 69-2, 1-4.)
8. Defendants' Affidavit of Rodney Martin
4. I am an investigator for Police Services. Part of my job responsibilities include interviewing inmates, staff and contractors when complaints or allegations are made, including complaints received through the “*22” telephone system.
5. Please see Angela Hardin's affidavit regarding the number of investigations conducted by our office. When interviewing inmates, the gathering of specific, pertinent and credible information is critical during the preliminary stage. ....
8. I interviewed Pilcher in response to his allegation of misconduct against employees and fear of gangs. See exhibit A.
9. According to documents and Pilcher's complaint, I interviewed him on approximately September 9, 2019. See response provided to Pilcher in exhibit A. I do not specifically recall my interview of Pilcher.
10. As a result of my interview with Pilcher, I can deduce that Pilcher was unwilling or unable to provide any specific information about the alleged misconduct of a staff member, such as what gang member informed him of the hit, what gang member is working with Sgt. Coaxum, possible motives of Sgt. Coaxum for placing a hit on him, etc. In an absence of even basic information, it would be unreasonable to submit a staff member or even an inmate to submit to a polygraph test. Polygraph testing is an expensive and seldom used confirmational tool used in investigations, but it is not a stand alone ‘truth machine' to be deployed on the whim of a mere allegation. Polygraphs are not metal detectors. Polygraphs are not admissible evidence in a court of law.
11. Based on the information available to me, Pilcher was unable and/or unwilling to provide specific identifying information upon which I could reasonably open an investigation. My determination following the interview with Pilcher would have been that his complaint and allegations were unfounded in the absence of any corroborating information, i.e. who, what, why, when, how, etc. ....
13. Based upon interview with Pilcher, it was determined that no investigation was warranted, and no investigation file was created. With the limited resources available to Police Services, it is unreasonable to expect a formal investigation against any employee to be opened on generic, vague, and unsubstantiated information offered by an inmate who otherwise refuses to cooperate. ....
16. Regarding the kiosk submission of Pilcher [Dkt. No. 45-1], I did not generally respond to kiosks/RTSM's. The response provided to ECF 45-1 appears to be an inaccurate response. For instance, it is not possible to provide an exact future closing date. It may also be that the response was erroneously provided to the wrong inmate.
(Signed by Rodney Martin on October 7, 2021.)(Dkt. No. 59-1, 1-5.)
9. Defendants' Inmate Request - General from Eddie Pilcher
(Dated 6/7/21; Date Requested 8/12/19)
Request Details: I would like to speak to SLED regarding Sgt. Coaxum's misconduct in office. In relation to her going to members of the blood gang and put out a hit on me so that they would harm me.
Disposition: Complete
Officer: Lisa Craft
Disposition Dated: 09/10/19 13:52
Request Responses
Date Author Note
09/10/19 c062844 Agent Martin spoke with you on
9/9/19. You were told we cannot polygraph him to clear his name with the bloods and you did not want to cooperate and give any names.(Dkt. Nos. 59-1, 6; 59-2, 4.)
10. Defendants' Affidavit of Angela Hardin
2. I, Angela Hardin, have served in Office of Investigations and Intelligence, formerly known as Police Services, since 2015, and am the Administrative Manager. I have been employed with SCDC since 1997. . .
7. As far as I am aware, Pilcher did not cooperate by providing pertinent, specific, and critical information during Agent Martin's interview. See exhibit A and Agent Martin's affidavit. Interviewing an inmate does not necessarily lead to a formal investigation. Again, gathering pertinent, specific, and credible information is critical during my interview and investigation. Due to limited resources, every generic and vague allegation against an employee is not formally investigated. However, when an inmate does provide pertinent, specific, and critical information, a formal investigation will occur. ....
9. Regarding the kiosk submission of Pilcher [Dkt. No. 45-1],
the response provided does appear to be an inaccurate response. For one thing, it is impossible to provide an exact future closing date of an investigation, which does indicate the wrong date was entered. It is also very possible that this response was provided to the wrong inmate. Since March 2014 (implementation of Kiosk), eight thousand nine hundred and fifty-nine (8959) kiosks have been submitted to this office, which averages approximately ninety-eight (98) kiosks monthly. Wrong responses have been provided to inmates before.
(Signed by Angela Hardin on October 6, 2021.)(Dkt. No. 59-2, 1-3.)
B. Analysis - Eighth Amendment Claims
The gravamen of Defendants' motion is that summary judgment should be granted because Plaintiff's allegations are not worthy of credence. According to Defendants,
Pilcher incredulously claims that while he was on the phone with his lady, and in the presence of Lt. Level, another inmate (T.Y.) struck him in the mouth, that six or seven other officers were all called to the captain's office where he was making an illegal phone call to his lady, and that all of the officers allowed the assailant (T.Y.) to leave the captain's office. ECF 1, p. 10-11. Apparently after T.Y. left (and presumably the six or seven officers who were summoned also left), T.Y. and Lt. Level attempted to bribe Pilcher to be quiet. Curiously, Pilcher fails to explain several key motivators: How did the staff know that Pilcher, who was on phone restriction, wished to call his lady? Why would staff take Pilcher to an officer's office to make a personal call? Why did T.Y. strike Pilcher and was this part of the alleged assignation [sic] plot? Why were six or seven other officers summoned to the captain's office, and why did they all leave without incident or documentation? Why would T.Y. strike Pilcher, leave the office and them [sic] magically reappear and attempt to bride [sic] Pilcher to be quiet? And why would Lt. Level, supposedly the only named witness to the assault, also attempt to bribe Pilcher to be quiet? And finally, how do all of these implausible events relate to the Coaxum alleged assignation [sic] plot?(Dkt. No. 69-1, 5.)
The undersigned assumes Defendants intend the word “assassination” rather than “assignation” in this paragraph.
Defendants further complain that Plaintiff offers “only hearsay (within hearsay again)” and vague and non-specific allegations against Defendants. (Dkt. No. 69-1, 6.) (emphasis in original.) To the contrary, Plaintiff has submitted medical records verifying the assault took place, as well as RTSM forms to support his claim that Defendants Nelson, Thomas, and Martin were aware Plaintiff reported being in danger before the assault. To rebut Plaintiff's allegations, Defendants have submitted: (1) an affidavit of Defendant Levels denying any recollection of the event; (2) an affidavit of Defendant Martin denying specific recollection of his interview with Plaintiff but stating it appears Plaintiff failed to provide specific information that would justify opening an investigation; and (3) an affidavit of an administrative member of the SCDC Police Services providing information regarding the number of inmate complaints that are processed by the Police Services monthly.
Defendants also argue that Plaintiff fails to offer any facts to connect the alleged assassination plot to the assault by a RHU inmate worker on June 18, 2019. (Dkt. No. 69-1, 7.) In response, Plaintiff states:
Plaintiff learned from a inmate who goes by “Frosty” that once Plaintiff was in the office Inmate Worker Dukes told inmate T.Y. that i was in the office. So Inmate Dukes offered to pay T.Y. since inmate Blackwell refused the advance from Sgt. Coaxum and Inmate Dukes. After Inmate Worker T.Y. struck me i took my restraints off and Lt. Levels could not let me go because if he had who knows what would've happened.... These events relate to Sgt. Coaxum because her and inmate Dukes approached inmate Blackwell on 6/16/19 stating that i was sending contraband to shake down the Bloods. On 6/17/2019 Contraband shook down inmate blackwell, the same inmate that Sgt. Coaxum and inmate Dukes tried to turn against me. Prior to Contraband shaking down inmate Blackwell inmate worker T.Y. brought him a tray of alleged Contraband. The following day inmate worker “K.O.” Dukes told T.Y. to assault me. After the assault inmate worker T.Y. went back on the wing bragging about what he had done. See Declaration of inmate Perry Smith[.](Dkt. No. 72, 6.) (errors in original.)
The undersigned cannot say Plaintiff's allegations are wholly unbelievable or improbable. Summary judgment is not appropriate when the affidavits and other relevant filings in the record present conflicting versions of the facts that require credibility determinations. See Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979).
The facts being in dispute, the undersigned therefore will turn to the issue of sovereign immunity, the sole legal argument presented in Defendants' motion for summary judgment, and then to Defendants' legal argument set forth in their reply to Plaintiff's response in opposition, which is that no Defendant had specific knowledge Plaintiff was at risk prior to the alleged assault.
1. Sovereign Immunity
Defendants assert that Plaintiff's civil rights claims against SCDC are barred by Eleventh Amendment immunity. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. “Although by its terms the Amendment applies only to suits against a State by citizens of another State, [the Supreme Court has] extended the Amendment's applicability to suits by citizens against their own States. The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. ” Bd. of Trustees v. Garrett, 531 U.S. 356, 363 (2001) (citations omitted.). Further, while § 1983 allows for suits for damages against state officials in their individual capacities, it does not allow for suits for money damages against state officials in their official capacities. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989).
SCDC is a department of the State of South Carolina that is entitled to Eleventh Amendment immunity from a suit for money damages brought in federal court. See Belcher v. S.C. Bd. of Corr. 460 F.Supp. 805, 808-09 (D.S.C. 1978). Plaintiff does not dispute that SCDC is entitled to Eleventh Amendment immunity for his § 1983 claims. Plaintiff argues, however, that the remaining Defendants have waived any claim to Eleventh Amendment immunity in their official capacities by not advancing this argument in their motion for summary judgment.
The SCTCA provides, in relevant part:
(b) The General Assembly in this chapter intends to grant the State, its political subdivisions, and employees, while acting within the scope of official duty, immunity from liability and suit for any tort except as waived by this chapter. The General
Assembly additionally intends to provide for liability on the part of the State, its political subdivisions, and employees, while acting within the scope of official duty, only to the extent provided herein. All other immunities applicable to a governmental entity, its employees, and agents are expressly preserved. The remedy provided by this chapter is the exclusive civil remedy available for any tort committed by a governmental entity, its employees, or its agents except as provided in § 15-78-70(b).
(e) Nothing in this chapter is construed as a waiver of the state's or political subdivision's immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States nor as consent to be sued in any state court beyond the boundaries of the State of South Carolina.
(f) The provisions of this chapter establishing limitations on and exemptions to the liability of the State, its political subdivisions, and employees, while acting within the scope of official duty, must be liberally construed in favor of limiting the liability of the State.S.C. Code Ann. § 15-78-20.
The undersigned recommends a finding that Plaintiff's § 1983 claims are barred by sovereign immunity as to SCDC and Defendants Nelson, Thomas, Levels, Coaxum, and Martin in their official capacities.
In addition, SCDC, as a state agency, and its officials acting in their official capacities, are not “persons” for purposes of § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989).
2. Deliberate Indifference
“The deliberate indifference standard generally applies to cases alleging failures to safeguard the inmate's health and safety, including failing to protect inmates from attack[.]” Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (citing Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 303 (1991)). “The deliberate indifference standard is a two-pronged test: (1) the prisoner must be exposed to ‘a substantial risk of serious harm,' and (2) the prison official must know of and disregard that substantial risk to the inmate's health or safety.” Id. at 97-98 (quoting Farmer, 511 U.S. at 834). “[A] prison official [may not] escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” Farmer, 511 U.S. at 843.
a. Defendant Coaxum. Plaintiff's claims against Defendant Coaxum fall into a different category of protection expected under the Eighth Amendment when compared to the remaining Defendants. This is because, if Plaintiff's allegations are to believed, Defendant Coaxum intentionally placed Plaintiff in harm's way. “A prison official who endangers the life or safety of a prisoner by prompting other inmates to injure him necessarily violates the Eighth Amendment, for suffering physical assaults while in prison is not ‘part of the penalty that criminal offenders pay for their offenses against society.'” Jones v. St. Lawrence, No CV 408-095, 2008 WL 5142396, at *5 (S.D. Ga. Dec. 5, 2008) (quoting Farmer, 511 U.S. at 833 (1981)). Defendant Coaxum, by allegedly informing Blood gang members that Plaintiff was “sending Contraband to shake them down” and offering $2,000 to “take care of” Plaintiff, unreasonably subjected Plaintiff “to the threat of a substantial risk of serious harm at the hands of his fellow inmates[.]” See Irving v. Dormire, 519 F.3d 441, 451 (8th Cir. 2008). If Plaintiff were able to prove Defendant Coaxum intended to harm Plaintiff by inciting other inmates to harm him, it would be “as if the guard [herself] inflicted the beating as punishment.” Northington v. Jackson, 973 F.2d 1518, 1525 (10th Cir. 1992).
Defendants have presented no affidavit or other evidence to refute Plaintiff's claims Defendant Coaxum was involved in an assassination plot again him. Instead, Defendants argue:
Coaxum did not personally participate in the events of June 18, 2019. Pilcher's double (or triple) hearsay allegations against Sgt. Coaxum for an alleged assassination plot fail as a matter of law. Pilcher fails to offer anything more than sheer speculation that Coaxum's alleged assassination plot was in anyway related to the alleged inmate on inmate assault on June 18, 2019. Sgt. Coaxum is entitled to summary judgment as a matter of law.(Dkt. No. 69-1, 7.)
Given the temporal proximity between Defendant Coaxum's alleged remarks on June 16, 2019 and the assault on Plaintiff on June 18, 2019, and the lack of evidence offered by Defendants in support of their motion for summary judgment, the undersigned finds that genuine issues of material fact exist regarding whether Defendant Coaxum violated Plaintiff's Eighth Amendment rights by inciting other inmates against him. The undersigned recommends that Defendants' motion for summary judgment be denied as to Defendant Coaxum.
b. Defendants Nelson, Thomas, Levels, and Martin. The undersigned will assume for purposes of summary judgment that Defendants Nelson, Thomas, Levels, and Martin were on notice that Plaintiff faced a substantial risk of a “hit” by members of the Blood gang at LCI, and that such a threat was sufficiently serious. The undersigned also will assume for purposes of summary judgment that the assault suffered by Plaintiff while he was in handcuffs was related to the purported “hit.” The question becomes, then, whether Plaintiff has demonstrated that Defendants Nelson, Thomas, Levels, and Martin possessed the requisite culpable state of mind. “The test is whether the guards know the plaintiff inmate faces a serious danger to his safety and they could avert the danger easily yet they fail to do so.” Brown v. N.C. Dep't of Corr., 612 F.3d 720, 723 (4th Cir. 2010) (quoting Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002)).
In Brown, a correctional staff member sent Brown to the “Housing Block” to retrieve cleaning supplies, despite knowing that another inmate on the Housing Block harbored a grudge against Brown. Brown was assaulted and brutally beaten by that inmate after entering the Housing Block. Brown required a steel plate to be inserted into his jaw, and suffered other permanent injuries. Brown, 612 F.3d at 723. Correctional officers who witnessed the assault elected not to intervene. Id. The district judge dismissed the case for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The Fourth Circuit Court of Appeals reversed, stating that the allegations of the complaint were sufficient to show staff members and correctional officers were deliberately indifferent to Brown's health and safety. Id. at 723.
In this case, Plaintiff's own statement of facts reports that, when the attack occurred, Lt. Levels “jumped up and grabbed” Plaintiff and told Plaintiff to “chill I got you.” Lt. Levels called for reinforcements and Plaintiff was treated for his physical and mental injuries. Plaintiff was told in response to his RTSWs to Defendants Nelson, Thomas, and Martin that his concerns had been investigated, but could not be corroborated. Defendant Thomas informed Plaintiff that the RHU inmate worker who attacked Plaintiff was terminated from his position. Defendant Martin arranged an interview with Plaintiff. The facts of this case are far from those recited in Brown, and show a reasonable response by Defendants Nelson, Thomas, Levels, and Martin to Plaintiff's allegations. The undersigned recommends a finding that Plaintiff has not carried his burden of showing deliberate indifference to a known risk to his safety regarding these four Defendants.
C. Analysis - Negligence Claims
Although Defendants generally move for summary judgment on all of Plaintiff's claims, they make no arguments specific to Plaintiff's negligence cause of action arising under the SCTCA. The undersigned recognizes that district courts “have an inherent power to grant summary judgment sua sponte so long as the party against whom summary judgment is entered has notice ‘sufficient to provide [it] with an adequate opportunity to demonstrate a genuine issue of material fact.'” Allstate Ins. Co. v. Fritz, 452 F.3d 316, 323 (4th Cir. 2006) (quoting U.S. Dev. Corp. v. Peoples Fed. Sav. & Loan Ass'n, 73 F.2d 731, 735 (4th Cir. 1989)) (emphasis added in Allstate decision). The undersigned recommends, however, that summary judgment not be granted sua sponte with respect to Plaintiff's negligence cause of action.
To prevail on a cause of action for negligence, the plaintiff must prove (1) a duty owed to the plaintiff by the defendant, (2) a breach of that duty by the defendant, and (3) damages proximately resulting from the breach of duty. Hubbard v. Taylor, 529 S.E.2d 549, 588 (S.C. Ct. App. 2000). In his complaint, Plaintiff alleges that
SCDC failed to protect me from violence from the hands of another inmate. They had knowledge prior to the assault and still failed me. They was deliberat indifferent negligent & failed to protect. In addition, no inmate is suppose to be around a lockup inmate in restraints and 2 officers are suppose to be with me at All Times. This did not happen, and is how another inmate was able to gain access to assault me.(Dkt. No. 1, 12-13.) (errors in original.)
Construed liberally, Plaintiff asserts potential claims of negligent training and supervision; negligence on the part of Levels for allegedly transporting Plaintiff out of RHU to use a telephone; negligence on the part of Levels for not obtaining the assistance of a second officer; and negligence on the parts of Nelson, Thomas, and Martin for failing to follow proper procedures to ensure Plaintiff was protected while housed in RHU. The undersigned therefore recommends that Plaintiff be allowed to proceed with his SCTCA claims against SCDC.
IV. CONCLUSION
For the reasons stated, it is RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 69) BE DENIED IN PART AND GRANTED IN PART. It further is recommended that Plaintiff be allowed to pursue his state law negligence cause of action against SCDC under the SCTCA.
IT IS SO RECOMMENDED.
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 (4thCir. 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:
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).