Opinion
9:19-cv-00147-TMC-MGB
02-02-2021
Chester A. Ray, Jr. and Mary S. Ray, as Personal Representatives of the Estate of Christian Daniel Ray, PLAINTIFFS, v. South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Correctional Officer Major Bernadette Richardson, individually and in her official capacity as an employee of South Carolina Department of Corrections; Correctional Officer Angela Leatherwood, individually and in her official capacity as an employee of South Carolina Department of Corrections; Courtney A. Dixon, individually and in her official capacity as an employee of the South Carolina Department of Corrections; and N. Fox, individually and in her official capacity as an employee of the South Carolina Department of Corrections, [1] DEFENDANTS.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
This action was filed by Plaintiffs Chester A. Ray, Jr. and Mary S. Ray (“Plaintiffs”), as personal representatives of the estate of Christian Daniel Ray (“Ray”) pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act (“SCTCA”), SC Code Ann. §§ 15-78-10 et. seq.(Dkt. No. 1-1.) Plaintiff originally filed this action in the Lee County Court of Common Pleas on December 12, 2018, and the case was removed to federal court on January 17, 2019. (Dkt. No. 1.) Currently before the Court is a Motion for Summary Judgment filed by Defendants South Carolina Department of Corrections (“SCDC”), Angela Leatherwood (“Leatherwood”), and Courtney Dixon (“Dixon”). (Dkt. No. 64.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., this matter has been assigned to the undersigned for all pretrial proceedings.
Plaintiffs are the natural parents of the decedent. (Dkt. No. 1-1 at 4.)
This case is one of the many actions currently before the undersigned that have been filed by Plaintiff's counsel concerning inmate violence and understaffing at the South Carolina Department of Corrections. See, e.g. Battle, et al. v. SCDC, et al., 2:18-cv-719-TMC-MGB; Bethel, et al. v. SCDC, et al., 4:18-cv-1343; Crawford v. SCDC, et al., 6:18-cv-2407; Ellerbe v. SCDC, et al., 6:19-cv-96; Murray v. SCDC, et al., 6:19-cv-100. On August 19, 2019, the undersigned held a Global Status Conference, in which counsel in all the cases within this category appeared. (Dkt. No. 63.)
As noted above, Defendant Courtney Dixon was dismissed as a party to this civil action after the filing of this Motion for Summary Judgment. (See Dkt. No. 64; Dkt. No. 73.)
For the reasons set forth below, the undersigned recommends that Defendants' Motion for Summary Judgment be granted in part and denied part.
BACKGROUND
This civil action arises from an alleged inmate-on-inmate attack that occurred at Lee Correctional Institution (“Lee”) on July 15, 2017. (Dkt. No. 1-1 at 8.) Plaintiffs allege that Ray was “attacked and stabbed multiple times by gang members who then also attacked and stabbed three (3) other inmates.” (Id.) According to Plaintiffs, Ray was left “lying where he was stabbed, bleeding onto the floor” before Defendant Leatherwood “finally called the first responders.” (Id.) Plaintiffs further allege that Ray “was left lying in the dorm and in medical for over three (3) hours with a hole in his chest” and that “no one at medical . . . attempted to do anything to assist the decedent; no one attempted to stop the bleeding; and he was heard crying out and begging for help, stating that he was dying.” (Id. at 9.) Plaintiffs state that “the stab wound to the decedent's chest perforated an artery and because nothing was done to render medical attention to decedent for over three (3) hours, the decedent died from exsanguination.” (Id.) Plaintiffs allege that “acts and/or omissions by the Defendants caused the decedent to endure unnecessary pain and suffering and led to his untimely death. (Id.)
According to Plaintiffs, “Lee Correctional Institution has a long history of violence among inmates housed in the institution.” (Id. at 6.) Plaintiffs claim that violence is often “encouraged and/or condoned” and that “perpetrators are not punished.” (Id.) Plaintiffs allege that Lee frequently operates in violation of SCDC's policies and procedures-including SCDC's policy not to allow inmates from one wing onto another wing-and that Defendants failed to keep weapons out of the hands of inmates housed at Lee. (Id. at 6-7.) Plaintiffs further allege that inmates at Lee are “either denied medical attention, given substandard medical treatment, or the medical treatment is unreasonably delayed.” (Id. at 11.)
The remaining causes of action in the Complaint are:
• Third Cause of Action: “Violation of Civil Rights and 42 USC Section 1983; General Allegations against Defendant Correctional Officer Angela Leatherwood” for inter alia, “allowing uncontrolled violence in the correctional institution”; “failing to provide protection and security for the Plaintiff”; “allowing inmates to have dangerous weapons”; “violating the separation policy by allowing inmates from one wing to improperly enter into another wing in violation of Defendant SCDC's policies and procedures” and “allowing, after notification, robberies, beatings, stabbings, possession of contraband weapons, and other violations to occur by ‘turning a blind eye' to such violations and failing to take corrective actions to prevent such violations.”
• Fifth Cause of Action: “Violation of Tort Claims Act of South Carolina, SC Code Section 15-78-10, et. seq.; General Allegations against Defendant SCDC - Wrongful Death” for “the acts of its employees” who “act[ed] in a negligent, grossly negligent, reckless, willful and wanton manner in causing injury to the Plaintiff.”
• Sixth Cause of Action: “Violation of S.C. Tort Claims Act - [G]ross [N]egligence Survival Action” for “the conscious pain and suffering and other damages that the deceased . . . experienced as a direct and proximate result of the gross negligence of [SCDC]” and “the acts of its employees” who “act[ed] in a negligent, grossly negligent, reckless, willful and wanton manner in causing injury to the Plaintiff.”
• Seventh Cause of Action: “Violation of Tort Claims Act of South Carolina, SC Code Section 15-78-10, et. seq.; General Allegations against Defendant SCDC - Wrongful Death” for “the acts of its employees” who “act[ed] in a negligent, grossly negligent, reckless, willful and wanton manner in causing injury to the Plaintiff.”(Dkt. No. 1-1.) Plaintiffs seek actual, consequential, special, and punitive damages. (Id. at 23.)
Plaintiffs bring this § 1983 claim against Defendant Leatherwood on behalf of Ray for violations of his constitutional rights. (Dkt. No. 1-1 at 14.)
Plaintiffs bring this wrongful death claim against Defendant SCDC on behalf of Ray's heirs for, inter alia, loss of financial support, mental shock and suffering, grief and sorrow, and loss of companionship. (Dkt. No. 1-1 at 18.)
Plaintiffs bring this gross negligence survival action against Defendant SCDC on behalf of Ray for, inter alia, injuries, conscious pain and suffering, and extreme emotional distress suffered by Ray. (Dkt. No. 1-1 at 21.)
The Court notes that Plaintiffs' Fourth and Seventh Causes of Action appear to be duplicative. (See Dkt. No. 1-1).
Defendants Angela Leatherwood, Courtney Dixon, and SCDC filed a Motion for Summary Judgment on September 3, 2020. (Dkt. No. 64.) Plaintiffs filed a response in opposition, along with several supporting exhibits and affidavits, on September 17, 2020. (Dkt. No. 65.) On September 24, 2020, Defendants filed a reply to Plaintiffs' response, along with a Motion to Strike certain exhibits and affidavits that were filed in support of Plaintiffs' response. (Dkt. No. 67; Dkt. No. 68.) Plaintiffs filed a response in opposition to Defendants' Motion to Strike (Dkt. No. 72) and a Voluntary Stipulation of Dismissal pertaining to Defendant Courtney Dixon on October 7, 2020 (Dkt. No. 71). On January 8, 2021, the Court granted in part and denied in part Defendants' Motion to Strike. (Dkt. No. 77.) In its January 8, 2021 Order, the Court noted that Plaintiffs' response in opposition to Defendants' Motion for Summary Judgement cited to portions of deposition testimony that were not included in the excerpts attached to the response. (Id. at 6, n.5.) The Court therefore ordered Plaintiffs to file the cited portions of deposition testimony to allow the undersigned to properly evaluate Plaintiffs' arguments. (Id.) Plaintiffs did so on January 14, 2021. (Dkt. No. 78.) Defendants' Motion is now ripe for disposition.
As noted herein, Defendant Courtney Dixon has since been dismissed from this case. (See Dkt. No. 73.)
STANDARD OF REVIEW
I. Motion for 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.” The News & Observer Publ'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)).
“As the moving party, Defendants are required to identify those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which they believe demonstrate the absence of genuine issues of material fact.” Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “As the nonmoving party, Plaintiff[] must then produce specific facts showing that there is a genuine issue for trial.” Id. (citing Celotex Corp., 477 U.S. at 317). “Plaintiffs may not rest on mere allegations or denials; they must produce ‘significant probative evidence tending to support the complaint.'” Id. (quoting Anderson, 477 U.S. at 248). In other words, “the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial.” Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2. (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018).
The undersigned recognizes that “[i]n this Circuit, verified complaints by pro se litigants are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge.” Sweat v. Cook, No. 9:09-cv-1255-HFF-BM, 2010 WL 1428328, at *1 (D.S.C. Mar. 12, 2010) (citing Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991)), adopted by, 2010 WL 1444190 (D.S.C. Apr. 9, 2010), aff'd, 402 Fed.Appx. 807 (4th Cir. 2010). However, Plaintiff has had counsel at every step in this action, and the Complaint is not signed by Plaintiff. Accordingly, Plaintiff cannot rely on the Complaint alone to defeat summary judgment.
In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must “draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Sandlands C & D LLC v. Cnty. of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
DISCUSSION
I. Defendants' Motion for Summary Judgment
Plaintiffs bring a § 1983 failure to protect claim for monetary damages against Defendant Leatherwood in her official and individual capacities. (Dkt. No. 1-1.) Plaintiffs also bring state law claims against Defendant SCDC. (Id.) In support of their Motion for Summary Judgment, Defendants argue that: (1) Plaintiffs' claims against Defendant Leatherwood in her official capacity are barred by the Eleventh Amendment; (2) Plaintiffs' claims against Defendant SCDC are barred by the Eleventh Amendment; (3) Plaintiffs' Fourteenth Amendment claims are actually Eighth Amendment claims; (4) Plaintiffs failed to produce evidence of Defendant Leatherwood's deliberate indifference; (5) Defendant Leatherwood is entitled to qualified immunity; (6) Defendant SCDC is immune from suit under the SCTCA; and (7) Plaintiffs have failed to present sufficient evidence to support a showing of gross negligence on behalf of Defendant SCDC. (Dkt. No. 64-1.) The undersigned considers these arguments, below.
A. Eleventh Amendment Immunity
Defendants assert that Plaintiffs' § 1983 claims brought against Defendant Leatherwood in her official capacity fail because as an official, she is not a “person” under § 1983. (Dkt. No. 64-1 at 18.) Plaintiffs respond that “Defendants voluntarily removed the case to federal court thereby waiving [immunity].” (Dkt. No. 65 at 18.)
In Will v. Mich. Dep't of State Police, the Supreme Court held that “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . [and] is no different from a suit against the State itself.” 491 U.S. 58, 71 (1989). In so finding, the Court acknowledged the Eleventh Amendment, which prohibits federal courts from entertaining an action against a state. Id. at 66. Accordingly, the undersigned finds Defendants' argument against Plaintiffs' § 1983 claims brought against Defendant Leatherwood in her official capacity is best addressed under the Eleventh Amendment.
Defendant Leatherwood raised the Eleventh Amendment as an affirmative defense in her Answer to the Complaint. (Dkt. No. 4 at 16.)
Eleventh Amendment immunity “extends to ‘arm[s] of the State,' including state agencies and state officers acting in their official capacity.” Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted). Accordingly, “[s]tate officials may only be sued in their individual capacities.” Rhoden v. S.C. Dep't of Corr., No. 4:17-cv-2537-HMH-TER, 2017 WL 9288217, at *3 (D.S.C. Oct. 4, 2017) (finding claims against prison warden in his official capacity should be dismissed because warden is entitled to Eleventh Amendment immunity), adopted by, 2017 WL 5494126 (D.S.C. Nov. 16, 2017), amended, 2017 WL 6032341 (D.S.C. Dec. 6, 2017); Edwards v. Patell, No. 4:06-cv-0748-HFF-TER, 2007 WL 2428548, at *8 (D.S.C. Aug. 21, 2007) (dismissing claims brought against defendant “employee of SCDC” in his official capacity). “As a state agency, SCDC is an arm of the State of South Carolina.” Abebe v. S.C. Dep't of Corr., No. 0:09-cv-3111-MBS-PJ, 2010 WL 2991595, at *2 (D.S.C. July 2, 2010), adopted in part, 2010 WL 3258595 (D.S.C. Aug. 16, 2010).
Notably, by voluntarily removing a case to federal court, a defendant waives any immunity from suit in federal court with respect to any claims it otherwise would have been subject to in state court. Lapides v. Board of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 619 (2002) (“A State's voluntary appearance in federal court waives sovereign immunity for claims where a state has consented to suit in its own courts for such claims.”); see also Cameron v. Cox, No. 1:10-cv-1278-HFF-SVH, 2011 WL 1235308, at * 4 (D.S.C. Jan.21, 2011), adopted by, 2011 WL 1212177 (D.S.C. Mar. 30, 2011). Through enactment of the SCTCA, South Carolina has generally consented to suit for tort claims filed against it in state court. Briggs v. S.C. Dept. of Corrections, No. 9:13-cv-1348-RMG, 2014 WL 1278173, at *21 (Mar. 27, 2014).
Based on the foregoing, the undersigned recommends that the Eleventh Amendment bars Plaintiffs' § 1983 claims for monetary damages brought against Defendant Leatherwood in her official capacity. However, because SCDC voluntarily removed this case to federal court and South Carolina has consented to suit for tort claims filed against it in state court, SCDC is subject to suit in this Court for the state law claims asserted against it.
B. Constitutional Claims against Defendant Leatherwood
In the Complaint's Third Cause of Action, Plaintiffs allege that Defendant Leatherwood committed constitutional violations pursuant to § 1983. (Dkt. No. 1-1 at 13-14.) Plaintiffs allege that Defendant Leatherwood deprived Ray of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. (Id.) More specifically, Plaintiffs allege that Defendant Leatherwood “act[ed] in a negligent, grossly negligent, reckless, willful, wanton manner [sic] and deliberately indifferent manner . . . causing injury and death to the Plaintiffs' decedent” by, inter alia, “allowing uncontrolled violence in the correctional institution”; “failing to provide protection and security for the decedent”; and “allowing inmates to have dangerous weapons.” (Id.) Plaintiffs also allege that Defendant Leatherwood “fail[ed] to comply with SCDC policies and procedures.” (Id. at 14.)
As an initial matter, because Ray was a state prisoner and not a pre-trial detainee, Plaintiffs' allegations of deliberate indifference and failure to protect implicate the Eighth Amendment's proscription against cruel and unusual punishment, not the Fourteenth Amendment's requirement of due process. Bowman v. Ozmint, No. 0:08-2517-PMD-PJG, 2009 WL 3065180, at *12 (D.S.C. Sept. 22, 2009), aff'd, 369 Fed.Appx. 416 (4th Cir. 2010) (“[A]s Bowman is a state prisoner and not a pre-trial detainee, his allegations of deliberate indifference and failure to protect implicate the Eighth Amendment's proscription against cruel and unusual punishment . . . not the Fourteenth Amendment's requirement of due process.”); see also Heyward v. Price, No. 6:18-cv-00150-JMC, 2019 WL 1416880, at *5 (D.S.C. Mar. 29, 2019), aff'd in part, vacated in part, remanded, 785 Fed.Appx. 109 (4th Cir. 2019) (“Although Plaintiff has alleged a violation of rights under the Fourth, Eighth, and Fourteenth Amendments, he is a convicted prisoner and, therefore, only the Eighth Amendment is relevant to the court's analysis.”); James v. S.C. Dep't of Corr., No. 3:08-cv-0664-HFF-JRM, 2009 WL 1147994, at *4 (D.S.C. Apr. 27, 2009) (“Defendants have analyzed Plaintiff's claims under the Fourteenth Amendment. Plaintiff, however, appears to have been a convicted inmate at the time of the alleged incidents such that his claims are properly analyzed under the Eighth Amendment.”). Accordingly, the undersigned recommends granting Defendant Leatherwood summary judgment on any claims for violation of Ray's Fourteenth Amendment rights.
Technically, the Fourteenth Amendment is applicable but only to the extent that the Eighth Amendment protection against infliction of cruel and unusual punishments is enforced against states through the Fourteenth Amendment. See Hewins v. Loftis, No. 6:15-cv-04320-MGL-JDA, 2016 WL 11410920, at *5 (D.S.C. May 19, 2016), adopted by, 2016 WL 4035461 (D.S.C. July 28, 2016).
1. Legal Standard
The Eighth Amendment requires prison officials to “protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). Officials must take “reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). In other words, “[t]he government and its officials are not free to let the state of nature take its course.” Farmer, 511 U.S. at 833. Nonetheless, “[t]he burden is on the prisoner to demonstrate that prison officials violated the Eighth Amendment, and that burden is a heavy one.” Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir. 2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)). Not every “injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. Instead, the Supreme Court has outlined two requirements for an Eighth Amendment failure to protect claim. First, “a prison official's act or omission must result in the denial of ‘the minimal civilized measure of life's necessities.'” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In other words, the denial of the prisoner's constitutional rights must be “sufficiently serious.” Id. at 825; see also Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014) (“a prisoner must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury”) (internal quotation marks omitted). Second, the prison official must have a “sufficiently culpable state of mind, ” which means the official either purposefully caused the harm or acted with “deliberate indifference.” Farmer, 511 U.S. at 825 (quoting Wilson v. Seiter, 501 U.S. 294, 297-303 (1991). A prison official demonstrates deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
A prison official is deliberately indifferent if he has actual knowledge of a substantial risk of harm to a prisoner and disregards that substantial risk. Id. at 847; Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (observing that “deliberate indifference” requires actual knowledge and disregard of a substantial risk of serious injury). A prison official is not liable if he or she “knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844; see also Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (finding that a prison official was not liable, because he did not actually draw the inference that the inmate was exposed to a substantial risk of serious harm). A showing of mere negligence does not qualify as deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347 (1986); see Whitley, 475 U.S. at 319 ((“[C]onduct that does not purport to be punishment at all must involve more than ordinary lack of due care .... [O]bduracy and wantonness, not inadvertence . . . characterize the conduct prohibited by [the Eighth Amendment].”); see also Moore v. Winebrenner, 927 F.2d 1312, 1316 (4th Cir. 1991) (citing Fourth Circuit cases adopting the Supreme Court's reasoning in Whitley).
A prison official's subjective actual knowledge can be proven through circumstantial evidence, for example, that the substantial risk of inmate attacks was “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known' about it.” Farmer, 511 U.S. at 842. The Fourth Circuit Court of Appeals has reiterated that the subjective knowledge component is nuanced. See Makdessi v. Fields, 789 F.3d 126, 137-38 (4th Cir. 2015) (finding that the district court failed to appreciate nuances with respect to this component). The Fourth Circuit acknowledged that the “‘actual knowledge' standard required to find prison officials deliberately indifferent to a substantial risk of serious injury may be proven by circumstantial evidence.” Id. at 129. “Prison officials may not simply bury their heads in the sand and thereby skirt liability.” Id. “Rather, they may be held accountable when a risk is so obvious that it had to have been known.” Id. Therefore, “‘even under this subjective standard, a prison official cannot hide behind an excuse that he was unaware of a risk, no matter how obvious.'” Id. at 133 (quoting Brice v. Virginia Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995)); see also Porter v. Clarke, 923 F.3d 348, 361 (4th Cir. 2019), as amended (May 6, 2019) (“[A]n obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate.” (quoting Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011)).
In short, direct evidence of actual knowledge is not required. Farmer, 511 U.S. at 842. The question is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial “‘risk of serious damage to his future health' . . . and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.” Id. at 843 (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)).
However, because prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment, it remains open to the officials to prove that they were unaware of an obvious risk to inmate health or safety. For example, they may show “that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Id. at 844. In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, “even if the harm ultimately was not averted” because a prison official's duty is to ensure “reasonable safety.” Id. (quoting Helling, 509 U.S. at 33). This standard “incorporates due regard for prison officials' ‘unenviable task of keeping dangerous men in safe custody under humane conditions.'” Id. (quoting Spain v. Procunier, 600 F.2d 189, 193 (9th Cir. 1979)) (Kennedy, J.). Absent successful rebuttal, prison officials may be held liable for obvious risks they must have known. Makdessi, 789 F.3d at 133 (citing Farmer, 511 U.S. at 842).
2. Analysis
As discussed above, a prison official is deliberately indifferent under the Eighth Amendment if he has actual knowledge of a substantial risk of harm to a prisoner and disregards that substantial risk. Farmer, 511 U.S. at 847. Defendants argue that Plaintiffs' failure to protect claim against Defendant Leatherwood must fail because Defendant Leatherwood was not aware of any substantial risk of harm to Ray. (Dkt. No. 64-1 at 12.) On the other hand, Plaintiffs argue that Defendant Leatherwood knew of a substantial risk of harm to Ray because Nathan Battle, an inmate at Lee and the roommate of the inmate who was charged with Ray's murder, warned Defendant Leatherwood of an impending attack. (Dkt. No. 65 at 14-15.) Plaintiffs further contend that Defendant Leatherwood did not respond reasonably to Mr. Battle's warning and, as such, disregarded her knowledge of a substantial risk to Ray. (Id.)
The undersigned notes Plaintiffs' argument that “prior incidents of inmate-on-inmate assault as well as knowledge of gang-related activity at the institution and the serious contraband problems gave Defendant Leatherwood actual or constructive knowledge of [] gang relate[d] activity [at Lee] and the risk it posed to inmates such as [Ray].” (Dkt. No. 65 at 14.) However, Plaintiff fails to cite any evidence indicating that Defendant Leatherwood knew of the severity of these problems prior to Ray's assault. (See generally Dkt. No. 65.) Although Plaintiff notes Defendant Leatherwood's testimony admitting that SCDC was experiencing a staff shortage at the time of the assault and that “a lot of things can happen when an officer is absent from a wing, ” (Dkt. No. 65 at 14), this does not show that Defendant Leatherwood was exposed to information concerning a longstanding, pervasive, and well-documented risk to inmates, and thus ‘must have known' about it.'” Farmer v. Brennan, 511 U.S. 825, 842 (1994).
To support their arguments, Plaintiffs cite to Mr. Battle's deposition testimony. (Id.) Plaintiffs assert:
As explained in the undersigned's January 8, 2021 Order resolving Defendants' Motion to Strike, Mr. Battle's testimony constitutes admissible evidence under Federal Rule of Evidence 804(b)(1). (Dkt. No. 77 at 2-5.)
Battle testified that he went out of the wing door which was unlocked and talked to Sgt. Leatherwood in the sally port hallway where she was sitting and told her that there was trouble brewing. She did not ask him any questions about what kind of trouble but just told him to go back onto the wing. He did and went back upstairs and told his friends that Leatherwood wasn't going to do anything. He testified that at that time, Christian went to try to talk with Green (the roommate) to try to calm things down. Battle testified that he believed that Leatherwood knew what was going on because she never came back onto the wing until after the stabbings were done.(Id.)
Excerpts from Mr. Battle's deposition are included as exhibits to Plaintiffs' response in opposition to Defendants' motion. (See generally Dkt. No. 65-3; see also Dkt. No. 78-1.) His actual deposition testimony reads:
I went to Leatherwood and I [tried] to let Leatherwood know [what was] going on. . . . [She] was running the dorm at the time. So I went to her and let her know what was going on and she was . . . like, oh, you're all right, just go back to the dorm. I said all right. I went back to the dorm. I went back upstairs to finish cooking and stuff and the other guy, my friend, he went to see what was going on, because I told him the situation....[N]ext thing you know, . . . I came out of the room, that's when he start[ed] stabbing him....(Dkt. No. 78-1 at 2.)
When asked if Defendant Leatherwood asked him why he thought something was going to happen, Mr. Battle responded “No, ma'am, she [didn't] ask none of that. She just was like go back on the wing.” (Id. at 5.) He further stated:
I told her that something [wasn't] right, I [felt] uncomfortable, [I felt] like something was about to happen and she was like what [do] you think [is] going to happen and I was like . . . something [is] about to happen and that's when she just was like, well, if you [aren't] trying to tell me what [is] about to happen, just go ahead and get back on the wing ....(Id.)
When asked where Defendant Leatherwood was located when Mr. Battle approached her, he replied: “[s]he was in the hallway . . . off the wing where they can't see [anything].” (Id. at 67.) He explained that he was able to reach her in the hallway because the door was open. (Id. at 7.) He described that he had not seen her on the wing at all that day, stating: “[s]he was in the hallway the whole time. Every time she work[s], that's where she [sits]. She sit[s] in the hallway every time she work[s].” (Id.) He also noted that, when Defendant Leatherwood is working, “she [doesn't] lock the doors . . . [she leaves] all the doors open and walk[s] off the wing.” (Id. at 13.)
Mr. Battle stated that he “[felt] like Leatherwood [knew] what was going on, because she [wasn't] on the Rock not one time. She [didn't come] on the Rock, did no round or [anything] one time.” (Id. at 3-4.) He further explained that he felt like Defendant Leatherwood was aware of the impending attack because she allowed “another inmate off another wing that [she knew was] a Blood, ” even though inmates “[aren't] supposed to be on both sides of the wing, . . . [it's] not supposed to happen like that.” (Id. at 11.)
Plaintiffs contend that Mr. Battle's deposition testimony creates an inference that Defendant Leatherwood was aware of a threat to Ray. (Dkt. No. 65 at 15.) Plaintiffs argue:
Although Defendant Sgt. Leatherwood may not have known specifically that Christian Ray was in danger, she had been alerted to the fact that there were problems brewing on the A wing of the dorm and that there was a potential for violence to erupt. At the time Nathan Battle notified Defendant Sgt. Leatherwood of the possibility of problems on the wing, she had the option of going onto the wing to monitor or calling for assistance to insure [sic] that there was an officer on both wings to monitor the wings. She did nothing.(Id.) In contrast, Defendants note Defendant Leatherwood's testimony that no one told her to expect “some kind of [] trouble or problem” on the wing prior to Ray's assault. (Dkt. No. 64-2 at 46.)
Excerpts from Defendant Leatherwood's deposition testimony are in the record as an exhibit to Defendants' Motion. (See generally Dkt. No. 64-2.) The deposition excerpts reflect that Defendant Leatherwood stated she would have informed her lieutenant if anyone warned her of an impending attack, “even if they didn't know exactly what [it] was [and said] ‘[s]omething feels funny' or ‘[s]omething's going on.'” (Id. at 47.) Defendant Leatherwood further stated that one of her responsibilities was to monitor her wing. (Id. at 24.) When asked how she did this, she responded: “I just walk around and just visual check.” (Id.) In recounting Ray's attack, Defendant Leatherwood explained: “I went to the bathroom, and when I returned back, he was being stabbed . . . I came onto the wing, and he ran behind me.” (Id. at 29.) She noted that the bathroom was located “[i]n the sally port.” (Id. at 31.)
Based on the above, the undersigned recommends that Defendants' Motion for Summary Judgment be denied with respect to Plaintiffs' § 1983 failure to protect claim against Defendant Leatherwood. The record clearly reflects conflicting testimony between Mr. Battle and Defendant Leatherwood. (Dkt. No. 64-2; Dkt. No. 78-1.) Although Defendants argue that Mr. Battle's testimony is insufficient to establish the knowledge requirement of Plaintiffs' claim, (Dkt. No. 68 at 4), the undersigned must view the testimony in the light most favorable to Plaintiffs and must draw all justifiable inferences in Plaintiffs' favor. See Hunt, 526 U.S. at 552 (stating that “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor” when evaluating a motion for summary judgment (quoting Anderson, 477 U.S. at 255)). In doing so, the undersigned finds that there is a genuine dispute of material fact as to whether Defendant Leatherwood had at least an “inkling” that an attack on Ray would occur. See James v. Cartledge, No. 9:15-cv-0625-TLW-BM, 2016 WL 1448557, at *7 (D.S.C. Mar. 2, 2016) (granting summary judgment on § 1983 deliberate indifference claim against prison correctional officer who abandoned his post at the time of an attack because “Plaintiff has presented no evidence that Goble was aware that he was in danger from attack on the date at issue, or had any inkling that the attack was going to occur”), adopted by, 2016 WL 1427381 (D.S.C. Apr. 12, 2016), aff'd, 669 Fed.Appx. 674 (4th Cir. 2016).
The undersigned notes that Plaintiffs submitted the following sealed evidence in support of their response to Defendants' motion: (1) the investigative file from SCDC's Division of Police Services investigation into this incident, and (2) video surveillance footage depicting Ray's attack. (Dkt. No. 66; Dkt. No. 70; Dkt. No. 75; Dkt. No. 79.) In the video footage, Defendant Leatherwood emerges from the door to “the rock” after Ray has been attacked. She then assists him out the “F2 Entry A Side Door.” The footage shows Defendant Leatherwood standing just inside the side door (in a small area between the side door and the actual entrance to “the rock”) at the time of the stabbing. Although the footage is not entirely clear, Defendant Leatherwood appears to be facing away from “the rock” at the exact time of the stabbing and appears to turn and walk out onto “the rock” a few seconds later. Because the footage begins only a few seconds before Ray is stabbed, the footage is not useful in determining whether Mr. Battle approached Defendant Leatherwood prior to the attack. The undersigned does, however, note that there is no mention of Mr. Battle approaching Defendant Leatherwood in the Voluntary Written Statement he provided in connection with SCDC's Division of Police Services investigation. (Dkt. No. 79 at 481-82.)
The undersigned further recommends that Defendant Leatherwood is not entitled to qualified immunity. It has long been established that prison officials have a duty to protect inmates from a substantial and known risk of harm, including harm inflicted by other prisoners. See Farmer, 511 U.S. at 833. Questions of fact exist with regards to whether Defendant Leatherwood violated Ray's Eighth Amendment rights, as discussed above; therefore, the undersigned cannot determine at this time whether her actions were objectively reasonable. See, e.g., Crawford v. S.C. Dep't of Corr., No. 6:18-cv-02407-DCN-MGB, 2020 WL 7000864, at *26 (D.S.C. June 11, 2020), adopted, No. 6:18-cv-2407-DCN, 2020 WL 5835073 (D.S.C. Oct. 1, 2020) (denying summary judgment on qualified immunity grounds where questions of fact existed regarding whether defendants' actions were reasonable); Kane v. Beaufort Cnty. Sheriffs Dep't, No. 9:14-cv-508-RMG, 2015 WL 404570, at *5 (D.S.C. Jan. 29, 2015) (“summary judgment on qualified immunity grounds is improper as long as there remains any material factual dispute regarding the actual conduct of the defendants” (quoting Vathekan v. Prince George's Cnty., 154 F.3d 173, 180 (4th Cir. 1998)). As such, the undersigned recommends that the Court deny Defendant Leatherwood summary judgment on the grounds of qualified immunity. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (Defendant entitled to qualified immunity only insofar as the conduct alleged did not violate clearly established statutory or constitutional rights of which a reasonable person should have known); Newkirk v. Enzor, 674 F. App'x. 276 (4th Cir. 2017) (affirming denial of summary judgment on qualified immunity where facts remained in dispute); Wynn v. Perry, No. 3:14-cv-625-FDW, 2018 WL 1077321, at *29 (W.D. N.C. Feb. 27, 2018) (“It has long been established that prison officials have a duty to protect inmates from a substantial and known risk of harm, including harm inflicted by other prisoners.”).
C. State Law Claims against SCDC
Plaintiffs also bring state law claims against Defendant SCDC. (Dkt. No. 1-1.) For the reasons set forth below, the undersigned recommends that the Court deny Defendants' Motion for Summary Judgment with respect to Plaintiffs' gross negligence survival action and wrongful death claim against Defendant SCDC. The undersigned further recommends that the Court exercise supplemental jurisdiction over these state law claims under 28 U.S.C § 1367(c).
1. Gross Negligence
As a threshold matter, South Carolina provides a survival right of action, which states:
Causes of action for and in respect to any and all injuries and trespasses to and upon real estate and any and all injuries to the person or to personal property shall survive both to and against the personal or real representative, as the case may be, of a deceased person and the legal representative of an insolvent person or a defunct or insolvent corporation, any law or rule to the contrary notwithstanding.S.C. Code Ann. § 15-5-90. Plaintiffs bring their gross negligence claim on Ray's behalf as personal representatives of Ray's estate. (Dkt. No. 1-1 at 19-21.) They allege that “decedent, upon information and belief, lay injured, in pain and begging for help for hours before he finally bled to death from his injuries.” (Id. at 21.) Plaintiffs further state that they are “entitled to judgment against the Defendants for injuries, conscious pain and suffering, mental anguish, fear, extreme emotional distress, and other damages suffered by the decedent.” (Id.)
The record indicates that Ray did not die immediately following his assault. For example, Mr. Battle testified that he saw Ray in the prison's medical facility. (Dkt. No. 78-1 at 17.) He stated that Ray “couldn't talk [because he was] bleeding out [of] his mouth.... [H]e tried to call for help, but he couldn't.” (Id.) Ray's medical summary report details that he was “taken out of medical still awake and responsive and groaning.” (Dkt. No. 65-5 at 1.) Similarly, an incident report in the Investigative File describes that Ray “expired at 6:37 PM in RM 35 at the ER.” (Dkt. No. 79 at 18.)
As described below, there is a question of fact as to whether Defendant SCDC acted in a grossly negligent manner. Accordingly, the undersigned recommends that the Court deny Defendants' Motion for Summary Judgment with respect to Plaintiffs' gross negligence survival action.
The SCTCA provides that “a governmental entity is not liable for a loss resulting from responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any . . . prisoner, inmate, or client of any governmental entity, except when the responsibility or duty is exercised in a grossly negligent manner.” S.C. Code Ann. § 15-78-60(25) (2005) (emphasis added). “Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. It is the failure to exercise slight care.” Jinks v. Richland Cnty., 355 S.C. 341, 345, 585 S.E.2d 281, 283 (2003) (internal citation omitted). “The term is relative and means the absence of care that is necessary under the circumstances.” Moore by Moore v. Berkeley Cnty. Sch. Dist., 326 S.C. 584, 591, 486 S.E.2d 9, 13 (Ct. App. 1997). To state a claim for gross negligence, a plaintiff must show: (1) a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty by a grossly negligent act or omission; and (3) damages proximately resulting from the breach of duty. See Cockrell v. Lexington Cnty. Sch. Dist. One, No. 3:11-cv-2042-CMC, 2011 WL 5554811, at *5 (D.S.C. Nov. 15, 2011). Gross negligence is a mixed question of law and fact and should be presented to the jury unless the evidence supports only one reasonable inference. Bass v. S.C. Dep't of Soc. Servs., 414 S.C. 558, 571, 780 S.E.2d 252, 259 (2015).
Defendants argue that “SCDC is granted immunity and protected from suit under the [SCTCA].” (Dkt. No. 64-1 at 25.) However, the SCTCA clearly excludes acts of gross negligence from this immunity. See S.C. Code Ann. § 1578-60(25) (2005).
Here, the Complaint alleges that SCDC acted in a grossly negligent and reckless manner by, inter alia, (1) “allowing uncontrolled violence in the correctional institution”; (2) “failing to provide protection and security for the decedent”; (3) “[failing] to have a sufficient number of trained correctional officers to adequately respond to incidents such as what occurred to decedent”; (4) “allowing inmate[s] to have dangerous weapons”; and (5) “allowing, after notification, robberies, beatings, stabbings, possession of contraband weapons, and other violations to occur by ‘turning a blind eye' to such violations and failing to take corrective action to prevent such violations.” (Dkt. No. 1-1 at 20-21.)
For the reasons the undersigned has recommended summary judgment be denied as to Plaintiffs' Eighth Amendment claims against Leatherwood, summary judgment should also be denied to SCDC on the state law claims arising from the assault at issue. See A.P. ex rel. Bazerman v. Feaver, No. 04-15645, 2008 WL 3870697, at *12 (11th Cir. Aug. 21, 2008) (“[Deliberate indifference requires a much higher standard of fault than mere or even gross negligence ....”).
In addition, the evidence in the record indicates that Lee was suffering a severe staff shortage at the time of Ray's assault. (Dkt. No. 64-2; Dkt. No. 65-10.) More specifically, the Roth Report states “[s]ecurity staffing levels have been a critical concern at Lee for an extended period....[A] significant decrease in front-line security (FLS) staffing levels began in 2012 and had continued to decline through the middle of 2017.” (Dkt. No. 65-10 at 98.) In connection with this staffing shortage, the Roth Report conveys concerns regarding the number of contraband incidents and inmate-on-inmate assaults at Lee. (Id. at 102-03.) For example,
The “Roth Report” is a report drafted by Tom Roth in connection with a settlement of another case against SCDC that focuses on staffing levels at SCDC. (Dkt. No. 65-10.) The Roth Report includes a detailed 20-page analysis of staffing issues specific to Lee, including on how staffing at Lee has impacted the number of contraband related incidents and incidents of assault from 2015 through 2017. The undersigned has addressed the relevance and discoverability of the Roth Report on numerous occasions in many of the cases that were included in the Global Status Conference. (Dkt. No. 63.) In these rulings, the Court found the Roth Report relevant and discoverable. See, e.g., Battle, et al. v. SCDC et al., 2:18-cv-719-TMC-MGB. The Court also found that the Roth Report is only “tangentially related to the Mental Health Settlement” and “is not covered by the confidentiality provisions of the Mental Health Settlement.” Id.
At Lee there has been several significant weapon related incidents, including incidents resulting in the death of an inmate. Reports reflected a stabbing has occurred at the facility in 2009, 2016, 2017 and 2018, resulting in an inmate death.
....
Having a total of between one and two staff assigned to a 250-bed housing unit which contains limited to no electronic surveillance support or having one staff member on the courtyard during movement periods, creates an environment where the perceived opportunity to commit an assault can initially go undetected. This appears to be the case at Lee. There is simply not enough staff supported by available surveillance equipment to consistently cover all the required areas and send the message to the inmate population that when involved in criminal activity the risk of being apprehended for the same will be great.
At Lee as previously mentioned an assault resulting in the death of an inmate occurred in 2009, 2016, 2017 and 2018. This is an extremely high number of fatal incidents for any facility. The total number of assault related incidents reported in 2017 were less than the overall average and less than the two previous years.... [A]ssaults still occur; however, at a higher than acceptable level. It is of considerable concern that in the past three years at least one homicide has occurred at the facility.(Id.)
The undersigned acknowledges that the Roth Report was published after Ray's attack. (See Dkt. No. 65-10.) However, the Roth Report in and of itself is not the critical evidence here. Rather, it is the information underlying and contained within the Roth Report that demonstrates longstanding issues with staffing levels, contraband, and inmate-on-inmate assaults at Lee. (Id.)
Accordingly, Defendants' argument that Plaintiffs' gross negligence claim “is based on two invalid deductions of fact, best articulated in the maxims ‘post hoc, ergo proper hoc' and ‘res ipsa loquitor, '” is without merit. (Dkt. No. 64-1 at 26.) Defendants argue that Plaintiffs rely on these maxims-which translate to “after this, therefore, on account of this” and “the thing speaks for itself”-because “Plaintiffs do not offer any evidence . . . that SCDC or any employee committed any wrongdoing, error, or omission.” (Id. at 26-27.) Defendants further argue that:
Plaintiff[s] make[] conclusory statements regarding the existence of contraband within Lee or a general failure to inspect, as evidence that Defendants should have been aware of a potential danger to [Ray's] health or safety. The premise that Defendants are placed on notice that any singular inmate may be assaulted by the mere fact that they are incarcerated in a prison is a logical fallacy.... There is no record evidence to support the Plaintiffs['] claims of grossly negligent conduct. There is neither correlation nor causation between conclusory facts . . . and an assault by one inmate upon another.(Id. at 27-28.)
Here, the undersigned cannot agree that there is no record evidence to support Plaintiff's gross negligence claim. As described above, there is a question of material fact as to whether Defendant Leatherwood acted with deliberate indifference prior to Ray's assault, and the Roth Report demonstrates that Lee was experiencing a severe staff shortage, contraband issues, and higher than acceptable rates of assault prior to the incident. (See supra at 20; see also Dkt. No. 6510 at 100-05.) Further, the undersigned cannot agree that there is a lack of evidence tending to show causation. Rather, the undersigned finds that there is a genuine issue of material fact as to whether it was reasonably foreseeable that a severe staff shortage, combined with high incidents of contraband and assault, would probably result in an inmate being attacked by other inmates. See Hubbard v. Taylor, 339 S.C. 582, 589, 529 S.E.2d 549, 552 (Ct. App. 2000) (citing Greenville Mem'l Auditorium v. Martin, 301 S.C. 242, 391 S.E.2d 546 (1990)) (“[I]t is not necessary for the defendant to have contemplated the particular event which occurred.... it is sufficient if the defendant should have foreseen that his negligence would probably cause injury to someone.”).
Because questions of fact exist as to whether SCDC failed to give the care necessary under the circumstances alleged in this action and therefore acted in a grossly negligent manner, see Moore by Moore, 326 S.C. at 591, the undersigned recommends that summary judgment be denied with respect to Plaintiffs' gross negligence survival action against SCDC. See Bass, 414 S.C. at 571 (gross negligence is a mixed question of law and fact and should be presented to the jury unless the evidence supports only one reasonable inference).
2. Wrongful Death
Plaintiffs also bring a wrongful death claim against Defendant SCDC on behalf of Ray's heirs. (Dkt. No. 1-1 at 16-18.) In making this claim, Plaintiffs allege that “Defendant SCDC acted in a negligent, grossly negligent, reckless, willful and wanton manner in causing injury to the decedent” by, inter alia, (1) “allowing uncontrolled violence in the correctional institution”; (2) “failing to provide protection and security for the decedent”; (3) “[failing] to have a sufficient number of trained correctional officers to adequately respond to incidents such as what occurred to decedent”; (4) “allowing inmate[s] to have dangerous weapons”; and (5) “allowing, after notification, robberies, beatings, stabbings, possession of contraband weapons, and other violations to occur by ‘turning a blind eye' to such violations and failing to take corrective action to prevent such violations.” (Dkt. No. 1-1 at 16-18.) Plaintiffs state that they are “entitled to judgment against the Defendants for injuries and damages suffered by the decedent, as well as the Plaintiffs.” (Id. at 18.)
As noted, Plaintiffs bring this wrongful death claim against Defendant SCDC on behalf of Ray's heirs, alleging “Violation of the Tort Claims Act of South Carolina.” (Dkt. No. 1-1 at 16, 18.) Under the SCTCA,
An action or claim for the death of a person may be brought under this chapter by the executor or administrator respectively, of the person's estate when death results from bodily injury if the bodily injury would have entitled the injured party to maintain an action or claim if death had not ensued. The provisions and limitations of this chapter are applicable to any such action or claim. Every action or claim must be for the benefit of the wife or husband and child, or children of the person whose death has been so caused and if there is no wife, husband, child, or children, then for the benefit of the parent or parents, and if there is none, then for the benefit of the heirs-at-law or the distributees of the person whose death has been so caused. Any amount recovered must be divided among the before-mentioned parties in those shares as they would have been entitled to if the deceased had died intestate and the amount recovered had been personal assets of his estate.S.C. Code Ann. § 15-78-60(25) (2005) (emphasis added).
South Carolina's wrongful death statute provides:
Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony. In the event of the death of the wrongdoer, such cause of action shall survive against his personal representative.S.C. Code Ann. § 15-51-10. Accordingly, a wrongful death claim is based upon negligence. See id. (providing relief for when death is “caused by the wrongful act, neglect or default of another”); see also Land v. Green Tree Servicing, LLC, 140 F.Supp.3d 539, 545 (D.S.C. 2015) (“[T]he plaintiff in a wrongful death action must establish that the wrongful act or negligence of the defendant caused the death of the decedent.”). As noted above, genuine issues of material fact preclude granting summary judgment on Plaintiffs' § 1983 failure to protect claim and Plaintiffs' gross negligence survival action. (See supra at 13-23.) Both of these claims require a higher standard of fault than Plaintiffs' wrongful death claim. See A.P. ex rel. Bazerman, 2008 WL 3870697, at *12 (“[Deliberate indifference requires a much higher standard of fault than mere or even gross negligence . . . .”).
Because the undersigned finds that genuine issues of material fact exist as to whether Defendants acted with deliberate indifference and gross negligence, the undersigned also finds a genuine issue of material fact as to whether Defendants acted with negligence. See Walters v. Cnty. of Charleston, No. 2:01-cv-0059-18, 2002 WL 34703346, at *9 (D.S.C. Feb. 7, 2002) (denying summary judgment as to plaintiff's wrongful death and survivorship claims under the SCTCA because “the issue of gross negligence is a factual issue” and “a factual dispute exists as to what actually occurred”). Accordingly, the undersigned recommends that summary judgment be denied with respect to Plaintiffs' wrongful death claim.
The undersigned emphasizes that Plaintiffs' wrongful death claim relies on the same allegations and set of facts as Plaintiffs' § 1983 and gross negligence claims. (See Dkt. No. 1-1.)
As noted above, Defendants argue that “SCDC is granted immunity and protected from suit under the [SCTCA].” (Dkt. No. 64-1 at 25.) However, the SCTCA clearly excludes acts of gross negligence from this immunity. See S.C. Code Ann. § 15-78-60(25) (2005). Although Plaintiffs need to show only negligence to establish a wrongful death claim, genuine issues of material fact exist regarding Defendants' fault. Accordingly, Plaintiffs may be able to show that Defendants acted with gross negligence. The undersigned therefore declines to grant Defendants summary judgment on the basis of immunity under the SCTCA for Plaintiffs' wrongful death claim.
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendants' Motion for Summary Judgment (Dkt. No. 64) be granted in part and denied in part. Accordingly, the undersigned recommends that Plaintiffs' Fourteenth Amendment claims against Defendant Leatherwood be dismissed. The undersigned further recommends that all other claims against Defendant Leatherwood and all claims against SCDC should survive this Motion for Summary Judgment.
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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).