Opinion
C. A. 9:22-cv-00807-TMC-MHC
07-17-2023
Jackie Richardson, Plaintiff, v. Bryan Stirling, Tonya James, Jennifer McDuffie, Thomas Commander, and Charlotte Aiello, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Before the Court are two Motions for Summary Judgment. The first was filed by Defendants Bryan Stirling, Tonya James, Jennifer McDuffie, and Thomas Commander. ECF No. 94. The second was filed by Defendant Charlotte Aiello. ECF No. 93. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising pro se Plaintiff Jackie Richardson (“Plaintiff”) of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motions, the undersigned filed a Report and Recommendation (“R&R”), recommending that the action be dismissed for lack of prosecution. ECF No. 97.
Plaintiff filed an Objection (ECF No. 99), and the undersigned vacated the R&R and extended the time for Plaintiff to file a Response in Opposition to Defendants' Motions. ECF No. 100. Plaintiff subsequently filed a Response in Opposition (ECF No. 104), and Defendant Aiello filed a Reply (ECF No. 105). Plaintiff filed a Sur-Reply. ECF No. 108. Thus, the Motions are ripe for review.
The Local Rules make no provision for Sur-Replies, and Plaintiff did not seek leave of the Court to file a Sur-Reply. See Stanfield v. Charleston Cnty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, at *4 n.2 (D.S.C. Aug. 18, 2015) (explaining that “neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit the filing of a sur-reply without leave of the Court”). Nevertheless, the undersigned has considered the Sur-Reply in making this Report and Recommendation, as Plaintiff is pro se.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e) (D.S.C.). Because the Motions are dispositive, this R&R is entered for review by the District Judge.
I. BACKGROUND
Plaintiff, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of this constitutional rights while he was incarcerated at Kershaw Correctional Institution (“KCI”) of the South Carolina Department of Corrections (“SCDC”). Specifically, he alleges claims of sexual abuse, a lack of mental and physical health treatment, and a failure to investigate his claims of sexual abuse. Plaintiff's claims stem from sexual encounters he alleges he had with Defendant Aiello. Plaintiff alleges that from April or May 2020 until November 2020, Defendant Aiello (who was the Food Service Director of KCI) sexually harassed and sexually assaulted him.
In her Motion for Summary Judgment, Defendant Aiello maintains that she was sexually assaulted by Plaintiff. ECF No. 93-1 at 2, 9 n.4. However, she concedes that viewing the evidence in the light most favorable to Plaintiff “lends itself to a finding of consensual sex between Plaintiff and Defendant Aiello.” ECF No. 93-1 at 9 n.4 (emphasis in original). For purposes of these Motions, the undersigned views the facts in the light most favorable to Plaintiff, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), including that the sexual encounters were consensual.
Plaintiff submitted, inter alia, a declaration wherein he detailed these sexual encounters. ECF No. 104-1. Defendants submitted excerpts of Plaintiff's deposition, along with SCDC's Office of Investigations and Intelligence (“OII”) report on Plaintiff's sexual abuse claims and KCI incident reports. ECF Nos. 93-2, 94-2, 94-3, 94-4.
According to Plaintiff, when Defendant Aiello started at KCI in April or May 2020, she began flirting with him. ECF No. 94-3 at 2. Defendant Aiello would compliment Plaintiff by telling him that he smelled good. ECF No. 94-3 at 2; ECF No. 104-1 at 7. One morning, while emptying the trash in the staff restroom, Defendant Aiello approached Plaintiff from behind and started rubbing on him. ECF No. 94-3 at 2; ECF No. 104-1 at 7-8. Plaintiff turned around, and they kissed “as they intimately touched.” ECF No. 94-3 at 2; ECF No. 104-1 at 8. On another morning, they kissed and hugged while leaning on the closet door in the storeroom. ECF No. 104-1 at 8. That encounter, Defendant Aiello let Plaintiff touch and penetrate her vagina. ECF No. 104-1 at 8. When they were finished, Defendant Aiello “asked [Plaintiff] if she could trust him to keep his mouth shut.” ECF No. 104-1 at 8.
When Defendant Aiello returned from the SCDC Academy, she was placed on first shift, which allowed them to continue having physical contact (kissing). ECF No. 94-3 at 2. One morning (unknown date) in the stock room, Defendant Aiello performed oral sex on Plaintiff. ECF No. 943 at 2. Plaintiff averred that Defendant Aiello told him that she “trust[ed] him to keep his mouth shut.” ECF No. 104-1 at 8.
On a second occasion (unknown date), Defendant Aiello performed oral sex on Plaintiff while in the closet, but he was not able to ejaculate. ECF No. 94-3 at 2; ECF No. 104-1. During this encounter, Defendant Aiello allowed Plaintiff to have vaginal intercourse with her. ECF No. 94-3 at 2; ECF No. 104-1 at 9. Defendant Aiello sat on his lap, which allowed him to penetrate her vaginally. ECF No. 94-3 at 2; ECF No. 104-1 at 9. Plaintiff maintained that Defendant Aiello again asked him if she could “trust him to keep his mouth shut.” ECF No. 104-1 at 9.
At some point after these sexual encounters, Plaintiff heard rumors from other inmates that Defendant Aiello was telling other people that he sexually assaulted her. ECF No. 93-2 at 8. Subsequently, Plaintiff filed a Prison Rape Elimination Act (“PREA”) claim with SCDC. ECF No. 94-3 at 2, 21. The PREA claim was investigated. ECF No. 94-3 at 2-6. According to the report, Defendant Aiello refused to speak with OII and refused to be polygraphed based on the recommendation of her attorney. ECF No. 94-3 at 6. The report noted that Defendant Aiello did not come forward about the allegation until she discovered she was being placed under investigation for having an inappropriate relationship with an inmate. ECF No. 94-3 at 6. The “Disposition of PREA Report” indicated that the investigation was concluded on July 1, 2021, the reported sexual abuse was substantiated, and the alleged perpetrator (Defendant Aiello) was suspended on December 17, 2021. ECF No. 104-2 at 2.
This may be a typographical error (it may be December 17, 2020, instead of 2021) as the report is dated July 20, 2021. See ECF No. 104-2 at 2.
Plaintiff was deposed on December 20, 2022, and during that deposition, Plaintiff stated multiple times that he engaged in consensual sexual activity with Defendant Aiello. ECF No. 932 at 4-7. Plaintiff also testified that, besides being “frustrate[d],” he did not experience any pain, physical or mental, from the sexual encounters. ECF No. 93-2 at 5, 7, 9-13. Plaintiff further acknowledged that his PREA claim was substantiated. ECF No. 94-2 at 7. Likewise, he acknowledged that Defendant Commander assisted Defendant McDuffie in the PREA investigation. See ECF No. 94-2 at 9. Plaintiff further admitted that he received both mental and physical health services. See ECF No. 94-2 at 7-9.
Plaintiff's Second Amended Complaint asserts that his Fourth, Eighth, and Fourteenth Amendment rights have been violated. ECF No. 46 at 1. Plaintiff requests injunctive and declaratory relief as well as monetary damages.
II. LEGAL STANDARD
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF Nos. 93, 94. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “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. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
There are two Motions for Summary Judgment pending, which the Court addresses in turn.
A. Defendants Stirling, James, McDuffie, and Commander's Motion for Summary Judgment
Defendants Stirling, James, McDuffie, and Commander argue summary judgment is proper as to all of Plaintiff's alleged constitutional violations against them for five reasons. Specifically, they argue (1) Eleventh Amendment immunity protects them in their official capacities; (2) Plaintiff has failed to show personal involvement; (3) Plaintiff has not shown an Eighth Amendment violation; (4) they are entitled to qualified immunity; and (5) they are not the proper parties for any state law tort claims. The Court agrees.
1. Eleventh Amendment
Defendants Stirling, James, and McDuffie are being sued in their official and individual capacities. See ECF No. 46 at 17, 20. Defendants, in their official capacities, are immune from suit under the Eleventh Amendment and, thus, entitled to summary judgment.
Plaintiff is not suing Defendant Commander in his official capacity. See ECF No. 46 at 17. To the extent Plaintiff intended to do so, Defendant Commander is also entitled to Eleventh Amendment immunity in his official capacity.
Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).
Here, Plaintiff has sued Defendants Stirling, James, and McDuffie in their official capacities. At all times relevant to Plaintiff's Second Amended Complaint, it is undisputed that Defendants were employed by SCDC. Thus, Defendants Stirling, James, and McDuffie are entitled to Eleventh Amendment immunity in their official capacities. See Simpson v. S.C. Dep't of Corr., No. 2:19-CV-2245-RMG, 2020 WL 582321, at *2 n.1 (D.S.C. Feb. 6, 2020) (noting SCDC employees are entitled to Eleventh Amendment immunity in suits brought against them in their official capacities). Additionally, for purposes of § 1983, Defendants are not considered “persons” amenable to suit. See Will, 491 U.S. at 71 (“Neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also Hafer v. Melo, 502 U.S. 21, 26-27 (1991). Accordingly, the undersigned recommends granting summary judgment to Defendants Stirling, James, and McDuffie in their official capacities.
2. Personal Involvement
Defendants argue Plaintiff has failed to show any personal involvement as to Defendants Stirling, James, and Commander. See ECF No. 94-1 at 4-6, 9-11. The Court agrees.
To state a § 1983 claim, Plaintiff must demonstrate the Defendants, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001). At the summary judgment stage, Plaintiff must show Defendants' personal involvement for liability to attach under § 1983. Williamson v. Stirling, 912 F.3d 154, 171-72 (4th Cir. 2018) (noting a plaintiff must affirmatively show that the official acted personally in violating the plaintiff's constitutional rights and finding certain defendants were entitled to summary judgment because “they lacked sufficient personal involvement in the alleged constitutional deprivations”).
a. Defendants Stirling and James
Here, the Second Amended Complaint fails to state any specific allegations against Defendants Stirling and James with regard to any of the alleged constitutional violations. Moreover, Plaintiff has not pointed to any evidence showing any role Defendants Stirling or James had in allegedly depriving him of any constitutional right. Indeed, Plaintiff admitted in his deposition that there was no specific conduct by Defendant Stirling to deprive Plaintiff of an established constitutional right. ECF No. 94-2 at 9-10. Likewise, Plaintiff admitted there is nothing Defendant James did to deprive him of his constitutional rights. ECF No. 94-2 at 10.
Thus, Plaintiff has failed to show these Defendants had any personal involvement in the alleged constitutional violations. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (citation omitted)).
To the extent Plaintiff alleges Defendants Stirling or James are vicariously liable by virtue of the actions of their subordinates, that claim also fails. Pure supervisory liability will not lie in § 1983 actions. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“The doctrine of respondeat superior has no application under this section.” (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977))). Rather, to hold a supervisor liable for a constitutional injury inflicted by a subordinate under § 1983, Plaintiff must show facts establishing the following elements: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an “affirmative causal link” between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Plaintiff has failed to produce evidence showing any of these required elements.
Accordingly, because Plaintiff fails to point to evidence in the record that supports a threshold essential element of a § 1983 claim against Defendants Stirling and James, these two Defendants are entitled to summary judgment. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment).
Indeed, Plaintiff's claims, as pled, do not even meet the pleading requirements of Rule 8. See ECF No. 46; Fed.R.Civ.P. 8. The Supreme Court has made clear that a plaintiff “must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Plaintiff has failed to plead sufficient facts to support a reasonable inference that Defendants are liable for any misconduct. See id. at 678. The Amended Complaint contains conclusory allegations that do not provide factual detail beyond averring generally that Defendants violated his constitutional rights. See id. (noting that a court is not bound to accept as true a complaint's threadbare, conclusory legal statements that are couched as factual allegations). There are no facts from which to infer that Defendants engaged in conduct that ran afoul of the Constitution. See id. at 679 (noting “[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief” (quoting Fed.R.Civ.P. 8(a)(2))). Furthermore, the Second Amended Complaint provides no specific examples of occurrences in which Defendants violated Plaintiff's rights, nor does it include allegations, with any specificity, of any personal involvement on the part of these two Defendants individually.
b. Defendant Commander
Plaintiff's Second Amended Complaint sets forth general conclusory allegations against Defendant Commander. See ECF No. 46. Plaintiff has not identified, nor pointed to any evidence in the record demonstrating, any conduct of or by Defendant Commander that could support any viable constitutional claim. Plaintiff testified only that Defendant Commander assisted Defendant McDuffie in the PREA investigation. ECF No. 94-2 at 9. Plaintiff puts forth no evidence that Defendant Commander wronged Plaintiff in any cognizable way.
Consequently, Plaintiff has failed to show Defendant Commander had any personal involvement in the alleged constitutional violations. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox, 877 F.3d at 170 (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (citation omitted)). Accordingly, because Plaintiff has failed to point to evidence in the record that would support threshold essential elements of a § 1983 claim against Defendant Commander, summary judgment is appropriate. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment).
3. Eighth Amendment
Plaintiff alleges Defendants McDuffie and Commander were deliberately indifferent to the sexual abuse allegations against Defendant Aiello by failing to investigation his PREA claim and denying him medical and/or mental health care.
Plaintiff also appears to allege a vague failure to protect claim against these two Defendants. See ECF No. 46 at 19; ECF No. 104 at 20. However, he has not pointed to any evidence in the record that supports this claim. See Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion).
Plaintiff's claims are an allegation that his Eighth Amendment rights were violated. See Scinto v. Stansberry, 841 F.3d 219, 233 (4th Cir. 2016); see also Jackson v. Holley, 666 Fed.Appx. 242, 244 (4th Cir. 2016) (noting allegations of sexual abuse can amount to a violation of the Eighth Amendment). To demonstrate a violation of the Eighth Amendment, Plaintiff must establish (1) a serious deprivation of a basic human need and (2) deliberate indifference to prison conditions on the part of Defendants. Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991).
Defendants argue that Plaintiff has failed to show an Eighth Amendment violation. Specifically, they argue Plaintiff's sexual abuse claims were investigated via the PREA claim and that Plaintiff received appropriate medical care. The Court agrees with Defendants.
With respect to Defendant Commander, they argue that, even if Plaintiff sufficiently alleged personal involvement, he nevertheless failed to show any constitutional violation. See ECF No. 94-1 at 7-8. As set forth above in section 2.b., the undersigned agrees.
a. PREA claim
Plaintiff alleges that Defendants McDuffie and Commander failed to investigate his PREA claim. See ECF No. 46 at 17-19. This claim fails.
The PREA “does not create a private cause of action under § 1983.” Bracy v. Tully, No. 1:22CV827 (RDA/WEF), 2022 WL 3229325, at *3 (E.D. Va. Aug. 10, 2022); see also Krieg v. Steele, 599 Fed.Appx. 231, 232-33 (5th Cir. 2015) (concluding that the PREA does not create a private cause of action); Williams v. Wetzel, No. 1:17cv79, 2020 WL 583983, at *17 (M.D. Pa. Feb. 6, 2020) (noting a plaintiff cannot “bring a private action to enforce obligations set forth in the PREA” via § 1983 because the statute does not establish “a private right of action”), aff'd, 827 Fed.Appx. 158, 162 (3d Cir. 2020). Thus, to the extent Plaintiff is suing Defendants for noncompliance with the PREA, any such claims are foreclosed. See Byrd v. S.C. Dep't of Corr., No. CIV.A. 5:11-3340-MGL, 2013 WL 5309759, at *11 (D.S.C. Sept. 19, 2013) (finding a plaintiff failed to state a § 1983 claim based on an alleged violation of the PREA and noting “there is no basis for a private right of action for inmates to sue prison officials for noncompliance with the Act”).
To the extent Plaintiff challenges the quality of the investigation into his PREA claim or the speed with which Defendants McDuffie and Commander investigated, he has no freestanding constitutional right to such an investigation under § 1983. See Powell v. Temple, No. 1:22CV302 (TSE/JFA), 2022 WL 2306762, at *4 (E.D. Va. June 27, 2022); see also Stringer v. Doe, 503 Fed.Appx. 888, 890-91 (11th Cir. 2013) (finding no substantive due process right to an internal investigation by law enforcement). That is, “a claim based on an inadequate investigation fails to state a constitutional violation because private citizens have no constitutional or federal statutory right to compel the investigation of another person.” Bracy, No. 1:22CV827 (RDA/WEF), 2022 WL 3229325, at *4 (citation and quotation marks omitted); see Miles v. Mitchell, No. 3:18-CV-P116-CRS, 2018 WL 5929643, at *5 (W.D. Ky. Nov. 13, 2018) (dismissing a plaintiff's claim that prison officials failed to properly investigate a PREA report for failure to state a § 1983 claim). Thus, to the extent Plaintiff's claim rests on an alleged failure to investigate his PREA complaint, that claim also fails.
Although unclear, Plaintiff may also be alleging that these two Defendants violated the Constitution by violating SCDC's policies. See ECF No. 104 at 20. However, violations of policies and procedures alone, even if they occurred, do not rise to the level of a constitutional violation. See Johnson v. S.C. Dep h of Corr., No. 3:06-2062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (“[T]the failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”); Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C. 1992) (noting § 1983 “does not provide any relief against prison rules violations assuming, arguendo, that such a violation occurred”). Therefore, to the extent Plaintiff may be asserting a claim on this basis, Defendants are entitled to summary judgment.
In any event, Plaintiff's allegation that Defendants McDuffie and Commander did not investigate his PREA claim lacks support in the record. In his deposition, Plaintiff admitted that his PREA claim was substantiated. ECF No. 94-2 at 7. Likewise, he acknowledged that Defendant Commander assisted Defendant McDuffie in the PREA investigation. See ECF No. 94-2 at 9. Indeed, the investigative report before the Court reflects that Plaintiff's PREA claim was substantiated, and that Defendant Aiello was suspended. See ECF No. 94-3 at 2-6; ECF No. 1042 at 2. Thus, Plaintiff has failed to show Defendants McDuffie and Commander violated his Eighth Amendment rights here.
Plaintiff appears to allege that he was temporarily removed from the general prison population while his PREA claim was investigated, which he appears to frame as “retaliation.” ECF No. 46 at 24-25. He also alleges Defendants McDuffie and Commander kept him from his legal materials that would help him pursue a suite. See id. Other than these vague allegations in the Second Amended Complaint, Plaintiff has not pointed to or provided any evidence to support any of these allegations. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment); Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion).
b. Deliberate indifference to medical care
To the extent Plaintiff alleges Defendants McDuffie and Commander failed to provide him medical care, that claim also fails. Defendants McDuffie and Commander are non-medical professionals. “Non-medical prison employees can be found to have acted with deliberate indifference by ‘intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.'” Krug v. Loranth, No. 1:13-CV-01409-DCN, 2014 WL 4955365, at *7 (D.S.C. Sept. 29, 2014) (quoting Estelle, 429 U.S. at 104-05), aff'd, 599 Fed.Appx. 512 (4th Cir. 2015). “To bring a constitutional claim against non-medical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with a prison doctor's treatment, or tacitly authorized or were indifferent to the prison physician's misconduct.” Id. Furthermore, non-medical professionals are generally entitled to rely on the medical expertise of medical providers. See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (“If a prisoner is under the care of medical experts . . ., a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.” (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004))).
Here, Plaintiffs claim fails for two reasons. First, Plaintiff has not shown that Defendants McDuffie and Commander acted personally to deny medical care or interfered with any treatment. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox, 877 F.3d at 170 (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (internal quotation marks and citation omitted)). Rather, he generally levels bald assertions of wrongdoing. See, e.g., ECF No. 104 at 2 (“Defendants knew of Plaintiff's sexual abuse claims and decided to ignore and disregard the substantial risk to his health. As a matter of law, [Defendants'] conduct in the PREA case is per se sufficient to establish they acted with a culpable state of mind that the deprivation suffered or injury inflicted on [Plaintiff] was sufficiently serious.”). Such conclusory assertions are insufficient to survive a motion for summary judgment. See Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion). There is nothing in the record to suggest that Defendants McDuffie or Commander were personally involved with a denial of treatment or deliberately interfered with a prison doctor's treatment of Plaintiff.
Second, Plaintiff admitted that he received both mental and physical health services. See ECF No. 94-2 at 7-9. Thus, Plaintiff has not shown that he was denied medical care. Accordingly, the undersigned recommends granting summary judgment in favor of Defendants McDuffie and Commander on this claim. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”).
4. Qualified Immunity
These Defendants also assert they are entitled to qualified immunity. The Court agrees.
The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
As noted above, Plaintiff has not shown Defendants violated his constitutional rights. Because Plaintiff has failed to show a clear constitutional violation, Defendants are entitled to qualified immunity.
5. State law tort claims
Defendants argue that, to the extent Plaintiff may be alleging state law claims pursuant to the South Carolina Tort Claims Act (“SCTCA”), those claims fail. The Court does not construe Plaintiff to be raising any such claims in his Second Amended Complaint. But, to the extent he does, the Court agrees with Defendants that those claims fail.
The SCTCA acts as a partial waiver of South Carolina's sovereign immunity. See S.C. Code Ann. § 15-78-20. The SCTCA governs all tort claims against state governmental entities and is the exclusive civil remedy available in an action against a state governmental entity or its employees, with a few exceptions not relevant here. See id.; Huggins v. Metts, 640 S.E.2d 465, 466 (S.C. Ct. App. 2006). “Under the Tort Claims Act, an employee of a governmental entity who commits a tort while acting within the scope of his official duty is generally not liable, and the plaintiff must sue the governmental agency itself.” Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995) (citing S.C. Code Ann. § 15-78-70(a)).
Here, to the extent Plaintiff may have alleged any state law tort claims arising under the SCTCA against these individual Defendants, that claim is barred. Rather, SCDC is the proper party. See id. Thus, the undersigned recommends dismissing any purported SCTCA claims alleged against these individual Defendants. See Al -Haqq v. Willingham, No. 2:20-3233-DCC-MGB, 2022 WL 4001117, at *8 (D.S.C. July 1, 2022) (“Plaintiff's remedy under the SCTCA requires him to bring an action against SCDC. Plaintiff did not name SCDC as a defendant in this action.”), report and recommendation adopted sub nom. Al-Haqq v. Willingham, No. 2:20-CV-03233-DCC-MGB, 2022 WL 4000844 (D.S.C. Sept. 1, 2022).
B. Defendant Aiello's Motion for Summary Judgment
Defendant Aiello separately moves for summary judgment, arguing she is entitled to summary judgment for four reasons. ECF No. 93-1. Specifically, she argues that (1) she is entitled to Eleventh Amendment immunity; (2) Plaintiff has failed to show an Eighth Amendment violation; (3) she is entitled to qualified immunity; and (4) Plaintiff has failed to show a Fourth Amendment violation.
1. Eleventh Amendment
Defendant Aiello argues she is entitled to Eleventh Amendment immunity in her official capacity. Although it does not appear that Plaintiff is suing Defendant Aiello in her official capacity, see ECF No. 46 at 14, to the extent Plaintiff purports to do so, the Court agrees Defendant Aiello is entitled to Eleventh Amendment immunity. See Simpson, No. 2:19-CV-2245-RMG, 2020 WL 582321, at *2 n.1 (noting SCDC employees are entitled to Eleventh Amendment immunity in suits brought against them in their official capacities).
2. Eighth Amendment
Plaintiff characterizes his Eighth Amendment claim against Defendant Aiello as one involving sexual abuse and sexual harassment. See ECF No. 46 at 15-16. Defendant Aiello argues that Plaintiff has failed to show a violation of the Eighth Amendment, which protects convicted inmates “from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).
While there is little controlling authority in this Circuit addressing sexual abuse and harassment claims under the Eighth Amendment, the courts that have addressed the issue draw from excessive force jurisprudence to analyze such claims. See, e.g., Ullery v. Bradley, 949 F.3d 1282, 1290 (10th Cir. 2020); Ricks v. Shover, 891 F.3d 468, 473-74 (3d Cir. 2018); Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997); see also Jackson v. Holley, 666 Fed.Appx. 242, 244 (4th Cir. 2016) (unpublished) (citing excessive force precedent and noting “not every malevolent touch by a prison guard gives rise to a federal cause of action” and that an inmate “who complains of a push or a shove that causes no discernible injury almost certainly fails to state a valid excessive force claim” (quoting Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010))).
Jackson did not explicitly set forth the legal framework for analyzing a prisoner's sexual abuse claim against prison officials, but it acknowledged that sexual abuse in the prison context can run afoul of the Eighth Amendment. See Jackson, 666 Fed.Appx. at 244 (“There can be little doubt that sexual abuse is repugnant to contemporary standards of decency, and that allegations of sexual abuse can amount to an Eighth Amendment violation.”).
Under these precedents, a prison official violates the Eighth Amendment if (1) the constitutional deprivation is “objectively, sufficiently serious” and (2) the prison official has a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation and internal quotation marks omitted); see also Ricks, 891 F.3d at 475 (concluding the sexual incident “must be objectively, sufficiently intolerable and cruel, capable of causing harm, and the official must have a culpable state of mind”). “What must be established with regard to each component ‘varies according to the nature of the alleged [Eighth Amendment] violation.'” Williams, 77 F.3d at 761 (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).
As to the objective prong, “the plaintiff must show the defendant's alleged wrongdoing was objectively harmful enough to establish a constitutional violation.” Ullery, 949 F.3d at 1290 (citation and internal quotation marks omitted). This is a context specific inquiry, depending on the claim at issue. Crawford, 796 F.3d at 256. Although the Supreme Court has noted that not “‘every malevolent touch by a prison guard gives rise to a federal cause of action,' the Eighth Amendment is offended by conduct that is ‘repugnant to the conscience of mankind.'” Id. (quoting Hudson, 503 U.S. at 9-10). “Conduct is repugnant to the conscience of mankind when it is ‘incompatible with evolving standards of decency' or involves ‘the unnecessary and wanton infliction of pain.'” Ullery, 949 F.3d at 1290 (quoting Hudson, 503 U.S. at 10).
As to the subjective prong, courts consider “whether the official had a legitimate penological purpose or if he or she acted ‘maliciously and sadistically for the very purpose of causing harm.'” Ricks, 891 F.3d at 475 (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). “Because this is a mental state, unless admitted, it has to be inferred rather than observed from conduct such as harassing comments, or an overly invasive search in violation of facility policy.” Id. (cleaned up) (citation omitted). As many courts have recognized, the “nature of the violative conduct itself will often be enough to demonstrate the prison official's culpable state of mind.” Id.; see also Ullery, 949 F.3d at 1290 (“In cases of sexual abuse or rape, the conduct itself constitutes sufficient evidence that force was used maliciously and sadistically for the very purpose of causing harm.”); Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (noting when no “legitimate law enforcement or penological purpose can be inferred from the defendant's alleged conduct, the [sexual] abuse itself may, in some circumstances, be sufficient evidence of a culpable state of mind”).
a. Subjective Component
The Court's inquiry here is whether Defendant Aiello acted with a “sufficiently culpable state of mind,” which “turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Ullery, 949 F.3d at 1290; see also Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (noting, in analyzing the subjective component of an excessive force claim, the core inquiry for the Court is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” (quoting Hudson, 503 U.S. at 7)). In this instance, the “force” at issue is sexual intercourse between a prison official and an inmate. The Second Circuit has stated, in no uncertain terms, that a prison official's actions that serve no penological purpose in the sexual abuse context are violative of the Eighth Amendment:
A corrections officer's intentional contact with an inmate's genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer 's sexual desire or humiliate the inmate, violates the Eighth Amendment. Similarly, if the situation is reversed and the officer intentionally brings his or her genitalia into contact with the inmate in order to arouse or gratify the officer's sexual desire or humiliate the inmate, a violation is self-evident because there can be no penological justification for such contact.Crawford, 796 F.3d at 257 (emphasis added). The undersigned finds the Second Circuit's framing of the issues regarding the subjective component persuasive.
Here, viewing the facts in a light most favorable to Plaintiff, Defendant Aiello and Plaintiff engaged in consensual sexual intercourse. There is no penological purpose for engaging in sexual intercourse with an inmate, and consensual sexual intercourse is undertaken with the intent to arouse or gratify both parties' sexual desires. See id. (noting prison official's “intentional contact with an inmate's genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer's sexual desire'” violates the Eighth Amendment (emphasis added)); see also Ricks, 891 F.3d at 475 (“The nature of the violative conduct itself will often be enough to demonstrate the prison official's culpable state of mind.” (citing Crawford, 796 F.3d at 257)). Thus, Defendant Aiello's conduct here is enough to demonstrate her culpable state of mind and establish the subjective component. See Ricks, 891 F.3d at 476 (noting “a desire to . . . gratify the officer-inferred through the officer's conduct-is a reasonable way to distinguish between invasive touching that is permitted by law to ensure safety and that which is not”); see also Carrigan v. Davis, 70 F.Supp.2d 448, 454-55 (D. Del. 1999) (“Because vaginal intercourse and/or fellatio between inmates and prison guards serves no legitimate [penological] purpose, is illegal and thus, contrary to the goals of law enforcement, the Court concludes, as a matter of law, that such conduct by a prison guard in a Delaware correction facility is per se sufficient to establish that the guard acted with a culpable mind.”).
Defendant Aiello argues, however, that the cases finding sexual assault violative of the Eighth Amendment involve defendants engaging in sexual acts against those plaintiffs' wishes. ECF No. 93-1 at 3. She contends that, in light of Plaintiff's deposition testimony, he cannot show that the sexual encounters that occurred here were nonconsensual. ECF No. 93-1 at 3-5. Under this theory, consensual sexual intercourse “would not constitute a sufficiently culpable state of mind.” ECF No. 93-1 at 3.
Defendant Aiello's arguments regarding the subjective component are misplaced. Courts that have considered the consent defense and found it to thwart an Eighth Amendment violation have done so under the objective prong. See, e.g., Freitas, 109 F.3d at 1339; Phillips v. Bird, No. CIV.A. 03-247-KAJ, 2003 WL 22953175, at *6 (D. Del. Dec. 1, 2003). Indeed, Defendant Aiello's emphasis on Plaintiff's deposition testimony focuses on the wrong party-Plaintiff's internal beliefs over whether the encounter was consensual do not pertain to Defendant Aiello's subjective state of mind. The Court's inquiry here is whether Defendant Aiello, not Plaintiff, acted with a “sufficiently culpable state of mind.” Perhaps more importantly, Defendant Aiello does not (and cannot) offer any penological justification for engaging in consensual sexual intercourse with a prisoner.
It is for this reason that Defendant Aiello's reliance on Garland v. Sherrill to attack the subjective component of an Eighth Amendment claim is unavailing. See Garland v. Sherrill, No. CA 5:12-0090-CMC-KDW, 2013 WL 557260, at *1 (D.S.C. Feb. 13, 2013) (noting, as to the issue of consent, “[t]he factual circumstances underlying the sexual contact between the parties, however, is clearly relevant to the Eighth Amendment analysis”). Though the court in Garland appeared to base its holding on the subjective component, the case upon which the Garland court reliedPhillips v. Bird-held that consensual sex between adults did not rise to the level of an Eighth Amendment violation because the plaintiff in that case failed to satisfy the objective component. See Phillips v. Bird, No. CIV.A. 03-247-KAJ, 2003 WL 22953175, at *6 (D. Del. Dec. 1, 2003) (“On the facts before me, plaintiff cannot meet her burden, under the Eighth Amendment, of proving that defendant Bird's conduct caused objectively serious injury or pain. Therefore, I need not consider the subjective test of whether defendant Bird acted with deliberate indifference to plaintiff's constitutional rights, health, or safety.” (emphasis added)).
Instead, as discussed below, the issue of Plaintiff's consent is more appropriately addressed under the “context specific” inquiry of the objective component of an Eighth Amendment claim. See Crawford, 796 F.3d at 256.
Notably, if the Court were to entertain Defendant Aiello's consent defense under the subjective prong, it could negatively impact cases involving pretrial detainees. The Supreme Court in Kingsley v. Hendrickson, 576 U.S. 389 (2015) held that “the appropriate standard for a pretrial detainee's excessive force claim is solely an objective one” and that therefore “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Kingsley, 576 U.S. at 397-98. Because courts draw from excessive force jurisprudence in analyzing sexual abuse claims, a pretrial detainee is not required to meet the subjective element postKingsley; rather, they only must demonstrate the conduct was “objectively harmful enough to establish a constitutional violation.” Brown v. Flowers, 974 F.3d 1178, 1182-83 (10th Cir. 2020) (citation omitted).
b. Objective Component
As the objective component is context specific, “[w]hether conduct is objectively cruel and unusual is better considered with sensitivity to ‘evolving standards of decency.'” Ricks, 891 F.3d at 477 (quoting Graham v. Florida, 560 U.S. 48, 58 (2010)). Courts considering the “contemporary standards of decency” begin their inquiry by reviewing “objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question.” Crawford, 796 F.3d at 259 (citation omitted).
Congress has “unanimously passed the Prison Rape Elimination Act (‘PREA'), 42 U.S.C. §§ 15601-15609-the first federal law to address the sexual abuse of prisoners.” Id. at 260. Moreover, like the overwhelming majority of states, South Carolina criminalizes sexual intercourse between prison officials and inmates. Id. at 259-60 nn.5-6 (collecting state statutes outlawing sexual activity between prison officials and prisoners); see also S.C. Code Ann. § 4423-1150. The South Carolina statute further provides that an inmate is “not capable of providing consent for sexual intercourse or sexual contact with [a prison official].” S.C. Code Ann. § 44-23-1150(A)(2). These “legislative enactments are the ‘clearest and most reliable objective evidence of contemporary values.'” Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020) (quoting Atkins v. Virginia, 536 U.S. 304, 312 (2002)).
According to Plaintiff, because of these statutes, he is legally incapable of providing consent for sexual intercourse with prison officials, notwithstanding his consent to sex with Defendant Aiello. Plaintiff argues that Defendant Aiello violated South Carolina law and disregarded her PREA training (which prohibits sexual contact) when she had sexual intercourse with him. See ECF No. 104-1 at 10. He contends that Defendant Aiello's power over him necessarily made the sexual relationship nonconsensual. ECF No. 104-1 at 10.
Despite these state criminal statutes, however, “[w]hile consensual sexual acts between prisoners and prison officials are never appropriate, it isn't clear that they necessarily violate the Eighth Amendment's prohibition on the infliction of cruel and unusual punishments.” DeJesus v. Lewis, 14 F.4th 1182, 1211 (11th Cir. 2021) (J. Luck, concurring in result) (collecting cases). Indeed, courts have recognized that not every allegation of sexual abuse is “objectively, sufficiently serious” for purposes of the Eighth Amendment. See Wilkins, 559 U.S. at 37 (noting “not ‘every malevolent touch by a prison guard gives rise to a federal cause of action.'” (quoting Hudson, 503 U.S. at 9)). In other words, “even if sexualized touching lacks a penological purpose, it may still fall below the threshold of constitutional cognizability based on a lack of objective seriousness.” Ricks, 891 F.3d at 476.
The Fourth Circuit has not yet definitively addressed whether a prisoner can legally consent to a sexual relationship with a prison official in the face of a statutory law that criminalizes the behavior. See Chapman v. Willis, No. 7:12-CV-00389, 2013 WL 2322947, at *6 (W.D. Va. May 28, 2013). However, this District has at least suggested a prisoner can. See Garland, No. CA 5:12-0090-CMC-KDW, 2013 WL 557260, at *1 (stating there is “no legislative history . . . that supports the conclusion that consensual sex between a prison inmate and a guard, in the prison setting, rises to the level of a violation of the Eighth Amendment's prohibition against cruel and unusual punishment” (quoting Phillips, No. CIV.A. 03-247-KAJ, 2003 WL 22953175, at *4)).
Some courts which have considered the issue have found that prisoners are legally incapable of consenting in the prison setting. See, e.g., Carrigan v. Davis, 70 F.Supp.2d 448, 461 (D. Del. 1999) (concluding that “to the extent that there may have been a factual willingness of the part of the Plaintiff to engage in a sexual act with Defendant Davis, this willingness is simply insufficient to amount to a legally valid, voluntary waiver” and thus “as a matter of law, the consent defense is unavailable to a prison guard who engages in vaginal sexual intercourse and/or fellatio with an inmate”); Cash v. Cnty. of Erie, No. 04-CV-0182-JTC (JJM), 2009 WL 3199558, at *2 (W.D.N.Y. Sept. 30, 2009) (“Because plaintiff was incarcerated, she lacked the ability to consent to engage in sexual intercourse with [defendant guard] as a matter of law.”). Both Carrigan and Cash based their reasoning, in part, on the existence of statutory law that criminalized sexual relations between a prisoner and a prison official. See Carrigan, 70 F.Supp.2d at 459 (noting that, by “criminalizing the conduct that would otherwise be noncriminal if performed by two consenting adults, the statute acknowledges the uniqueness of the custodial environment” and that “by eliminating consent as a defense to this crime, the statute recognizes the vulnerability of inmates to abuse by those empowered to control the inmate's existence”); Cash, No. 04-CV-0182-JTC(JJM), 2009 WL 3199558, at *2 n.3 (citing N.Y. Penal Law § 130.05(3)(f) and further acknowledging earlier case law that indicated that “before the new law's passage, an inmate could, as a matter of law, consent to sexual relations with a correction officer”). The Carrigan court did, however, clarify that it was not “refer[ring] to this statute to elevate it to a constitutional level.” Carrigan, 70 F.Supp.2d at 459.
In any event, this Court is not inclined to recommend a per se rule that elevates a violation of S.C. Code Ann. § 44-23-1150 to a constitutional violation, as doing so could be “an exercise fraught with the peril of unintended consequences.” See Phillips, No. CIV.A. 03-247-KAJ, 2003 WL 22953175, at *5; see also Graham v. Sheriff of Logan Cnty., 741 F.3d 1118, 1125 (10th Cir. 2013) (declining to adopt a per se rule on consensual intercourse in the prison setting and noting “not all misbehavior by public officials, even egregious misbehavior, violates the Constitution” and the “Supreme Court has warned against constitutionalizing . . . tortious conduct by government agents”); Wood v. Beauclair, 692 F.3d 1041, 1048 (9th Cir. 2012) (“While we understand the reasons behind a per se rule that would make prisoners incapable of legally consenting to sexual relationships with prison officials, we are concerned about the implications of removing consent as a defense for Eighth Amendment claims.”). Indeed, despite the legislative enactments that criminalize sexual contact between prisoners and prison officials in South Carlina, these laws do not “compel a finding that all inappropriate touching is per se unconstitutional.” See Ricks, 891 F.3d at 477-78 (finding federal and state laws criminalizing sexual contact between inmates and prison officials do not “envisage a zero tolerance standard” and “does not oblige [courts] to constitutionalize ‘every malevolent touch'”).
Thus, to the extent Plaintiff's sexual abuse claims are based on a legal inability to consent under S.C. Code Ann. § 44-23-1150 alone, the Court finds such arguments unpersuasive. A violation of the statute does not compel a finding of a constitutional violation. All things considered, a factual willingness to engage in sexual activity is salient to the “context specific” inquiry of determining whether the conduct here is objectively cruel and unusual for purposes of an Eighth Amendment violation. See Garland, No. CA 5:12-0090-CMC-KDW, 2013 WL 557260, at *1 (“The factual circumstances underlying the sexual contact between the parties, however, is clearly relevant to the Eighth Amendment analysis.” (citation and internal quotation marks omitted)).
Accordingly, the Court turns to the underlying facts for this context specific inquiry. See Chapman, No. 7:12-CV-00389, 2013 WL 2322947, at *5 (“[C]ourts must conduct a fact-intensive, case-by-case inquiry to determine if the sexual abuse was sufficiently serious.”); see also Crawford, 796 F.3d at 256. To that end, the “scope, place, and timing of the offensive conduct will bear on its severity, as will the details of the alleged contact.” Ricks, 891 F.3d at 478. While physical injury may certainly signal severity, “it is not the touchstone for objective seriousness.” Id. at 477.
According to Plaintiff, when Defendant Aiello started at KCI in April or May 2020, she began flirting with him. ECF No. 94-3 at 2. One morning, while emptying the trash in the staff restroom, Defendant Aiello approached Plaintiff from behind and started rubbing on him. ECF No. 94-3 at 2; ECF No. 104-1 at 7-8. Plaintiff turned around, and they kissed “as they intimately touched.” ECF No. 94-3 at 2; ECF No. 104-1 at 8.
Defendant Aiello would compliment Plaintiff by telling him that he smelled good. ECF No. 94-3 at 2. When Defendant Aiello returned from the SCDC Academy, she was placed on first shift, which allowed them to continue having physical contact (kissing). ECF No. 94-3 at 2. One morning in the stock room, Defendant Aiello performed oral sex on Plaintiff. ECF No. 94-3 at 2. Plaintiff averred that Defendant Aiello told him that she “trust[ed] him to keep his mouth shut.” ECF No. 104-1 at 8.
On a second occasion, Defendant Aiello performed oral sex on Plaintiff while in the closet and he was not able to ejaculate. ECF No. 94-3 at 2. During this encounter, Defendant Aiello allowed Plaintiff to have vaginal intercourse with her. ECF No. 94-3 at 2; ECF No. 104-1 at 9. Defendant Aiello sat on his lap, which allowed him to penetrate her vaginally. ECF No. 94-3 at 2. Plaintiff maintained that Defendant Aiello again asked him if she could “trust him to keep his mouth shut.” ECF No. 104-1 at 9.
Plaintiff gave his deposition on December 20, 2022, and during that deposition, Plaintiff stated multiple times that he engaged in consensual sexual activity with Defendant Aiello. ECF No. 93-2 at 4-7. Plaintiff also testified that, besides being “frustrated,” he did not experience any pain, physical or mental, from the sexual encounters. ECF No. 93-2 at 5, 7, 9-13.
Here, because of their consensual sexual encounters, Defendant Aiello argues that there has not been “pain” inflicted upon Plaintiff as required to establish the objective component of an Eighth Amendment claim. ECF No. 93-1 at 6-7. That is, she maintains that Plaintiff's claims fail because any alleged injury here was not sufficiently serious.
As an initial matter, Defendant Aiello's focus on the lack of pain experienced by Plaintiff is unavailing. Her argument is based on the Eighth Circuit case Freitas, which focused on the objective component of the excessive-force test and concluded, “[w]ithout deciding at what point unwelcome sexual advances become serious enough to constitute ‘pain,' we hold that, at the very least, welcome and voluntary sexual interactions, no matter how inappropriate, cannot as matter of law constitute ‘pain' as contemplated by the Eighth Amendment.” Freitas, 109 F.3d at 1339. But physical injury-or “pain” as Defendant Aiello frames it-is not “the touchstone for objective seriousness.” See Ricks, 891 F.3d at 477 n.6 (noting that “Congress recently amended the Prison Litigation Reform Act (‘PLRA') to add to its physical injury requirement an avenue for recovery for emotional damages for sexual abuse, perhaps acknowledging that sexual abuse may not result in physical injury”); see also Graham, 741 F.3d at 1124 (questioning whether the Freitas opinion's “focus on objective pain [is] consistent with the Supreme Court's more recent emphasis on force, rather than injury or harm” (citing Wilkins, 559 U.S. at 37-38)); Wood, 692 F.3d at 1050 (noting, under the objective prong, “there is no requirement that the plaintiff produce evidence of injury; rather, the only requirement is that the officer's actions be offensive to human dignity” (cleaned up) (citation omitted)).
Nevertheless, the Court agrees that Plaintiff has not satisfied the objective prong. Three things inform the undersigned's opinion. First, the details of the sexual contact between Plaintiff and Defendant Aiello show that the contact was consensual. Plaintiff has not shown otherwise, and, in fact, agreed in his deposition testimony that it was consensual. ECF No. 93-2 at 4-7.
Second, although the undersigned recognizes there exists an imbalance of power in the custodial relationship in the prison setting, the facts here do not show that this power dynamic came into play between Plaintiff and Defendant Aiello. See Wood, 692 F.3d at 1046-1047 (noting that even if a prisoner concedes that the sexual relationship is “voluntary,” because sex is often traded for favors, it is difficult to characterize sexual relationships in prison as truly the product of free choice).
Plaintiff avers that Defendant Aiello's “power made [the] sexual relationship nonconsensual.” ECF No. 104-1 at 10. But, other than this single sentence, Plaintiff does not show or elaborate on Defendant Aeillo's power, nor does he provide evidence of her wielding this power over him. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment); Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion). Even viewing Defendant Aiello's repeated requests for Plaintiff to “keep his mouth shut” in a light most favorable to Plaintiff, these requests, by themselves, do not evince Defendant Aiello wielding power over Plaintiff. There is no allegation or testimony that Defendant Aiello's requests were given for purposes of intimidation or otherwise implied Plaintiff needed to obey “or else” face retaliation or punishment.
Finally, there is no evidence that the sexual contact here was done under coercion or for a quid pro quo exchange of favors. Cf. Hammond v. Gordon Cnty., 316 F.Supp.2d 1262, 1287 (N.D.Ga. 2002) (finding allegations that a male jail guard required female inmate to strip in order to receive toiletries, and inserted his finger in inmate's vagina, stated claim that guard violated inmate's Eighth Amendment rights).
Accordingly, the undersigned finds that Plaintiff has not satisfied the objective prong. Without a doubt, objectively serious sexual contact includes unwanted “sexualized fondling, coerced sexual activity, combinations of ongoing harassment and abuse, and exchanges of sexual activity for special treatment or to avoid discipline.” Ricks, 891 F.3d at 478. But the facts before the Court do not show the sexual contact here was unwanted, or that the sexual acts were done for any other purpose other than gratifying the sexual desires of both parties. The Eighth Amendment protects convicted inmates from cruel and unusual punishments that are considered inhumane and repugnant to the conscience of mankind. Consensual sex between two adults does not rise to this level. See Phillips, No. CIV.A. 03-247-KAJ, 2003 WL 22953175, at *6 (“Consensual sex between two adults does not constitute cruel and unusual punishment simply because it occurs within the walls of a prison.”). Accordingly, Defendant Aiello is entitled to summary judgment on this claim.
3. Qualified immunity
Even if the Court were to find Plaintiff established an Eighth Amendment claim, Defendant Aiello would, nevertheless, be entitled to qualified immunity in this instance.
As noted above, the doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendant Aiello here. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
Here, Defendant Aiello is entitled to qualified immunity with respect to Plaintiff's Eighth Amendment claims because the violation was not of a clearly established right of which she would have known. As an initial matter, although neither the Fourth Circuit nor the Supreme Court has addressed the legal framework for analyzing prisoners' sexual abuse claims against prison officials, the undersigned is nevertheless persuaded that it has been clearly established since at least 2015 that inmates have a right to be free from sexual abuse. See Ullery, 949 F.3d at 129498 (analyzing case law from the Second, Third, Sixth, Seventh, Eighth, and Ninth Circuits and concluding that an inmate's right to be free from sexual abuse by an officer was clearly established by 2015); see also Booker v. S.C. Dep't of Corr., 855 F.3d 533, 543 (4th Cir. 2017) (“In the absence of controlling authority that specifically adjudicates the right in question, a right may still be clearly established . . . based on a consensus of cases of persuasive authority from other jurisdictions.” (citations and internal quotation marks omitted)).
As noted above, the closest case appears to be Jackson, in which the Fourth Circuit found, inter alia, that the defendant was entitled to qualified immunity under the second prong of the qualified immunity analysis for an Eighth Amendment sexual harassment claim. See Jackson, 666 Fed.Appx. at 244 n.* (summarily concluding prison staff psychologist did not violate the Eighth Amendment and was entitled to qualified immunity “[g]iven the lack of circuit authority regarding whether sexual harassment by prison officials amounts to a constitutional violation”).
However, there is nothing in the Fourth Circuit, nor is there a consensus of persuasive authority, addressing the issue of whether consensual sex between a prison official and a prisoner amounts to cruel and unusual punishment under the Eighth Amendment. See Chapman, No. 7:12-CV-00389, 2013 WL 2322947, at *6 (“This circuit has not yet definitively addressed whether a prisoner can legally consent to a relationship with a correctional officer.”); DeJesus, 14 F.4th at 1211 (J. Luck, concurring in result) (“While consensual sexual acts between prisoners and prison officials are never appropriate, it isn't clear that they necessarily violate the Eighth Amendment's prohibition on the infliction of cruel and unusual punishments.” (collecting cases)). Indeed, as illustrated above, there are varying approaches to just analyzing such a claim. See Graham, 741 F.3d at 1124 (noting “courts are divided in their approach to consensual sexual intercourse between guards and inmates” and discussing approaches).
Though undoubtedly inappropriate, and indeed criminal under South Carolina law, a reasonable government official would not have known that engaging in consensual sex with an inmate would amount to cruel and unusual punishment under the Eighth Amendment. Consequently, Defendant Aiello has met her burden to show that her actions did not violate “clearly established” law for purposes of Plaintiff's Eighth Amendment claims.
4. Plaintiff has not alleged any facts or produced evidence supporting a Fourth Amendment claim.
In his Second Amended Complaint, Plaintiff alleged that Defendant Aiello violated his Fourth Amendment rights. ECF No. 46 at 14. The Fourth Amendment protects a person's right against unreasonable searches and seizures. U.S. Const. amend. IV.
However, Plaintiff has not alleged, and the record does not contain, any facts supporting a Fourth Amendment violation as to Defendant Aiello, as the facts alleged deal only with the consensual sexual encounters between these two parties. There are no allegations or evidence of any kind of search or seizure which would give rise to a Fourth Amendment claim. See ECF No. 46. Thus, to the extent Plaintiff has attempted to maintain a Fourth Amendment claim against Defendant Aiello, such a claim must fail. See Celotex Corp., 477 U.S. at 322 (noting the nonmovant must provide evidence of every element essential to his action to survive summary judgment); Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion).
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendants Stirling, James, McDuffie, and Commander's Motion for Summary Judgment (ECF No. 94) be GRANTED. It is further RECOMMENDED that Defendant Aiello's Motion for Summary Judgment (ECF No. 93) be GRANTED.
IT IS SO RECOMMENDED.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).