Opinion
C. A. 1:21-2504-BHH-SVH
03-17-2022
Aron Salmeri, Plaintiff, v. Deputy Jones III, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
A pretrial detainee alleges he was subjected to harassment by a deputy that resulted in him also being bullied by other detainees. The deputy denies any harassment and seeks to have the court dismiss this case against him.
Plaintiff states he is gender-dysphoric and uses “them, they, and their” pronouns, but Plaintiff also employs he, him, and his pronouns in his filings. [See, e.g., ECF No. 40 at 8, ECF No. 33 at 1]. The court employs the latter pronouns consisted with some, although not all, of Plaintiff's filings.
Aron Salmeri (“Plaintiff”), proceeding pro se and in forma pauperis, filed this complaint for alleged violations of his civil rights against Deputy Jones III (“Defendant”). More specifically, Plaintiff brings suit pursuant to 42 U.S.C. § 1983 for “cruel and unusual punishment, reckless endangerment, harassment and bullying, and using positions of power to influence ill will.” [See ECF No. 1 at 4].
This case is before the court on Defendant's motion for summary judgment. [ECF No. 28]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 29]. Having been fully briefed [ECF Nos. 40, 42], the motion is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), the case has been referred to the undersigned for all pretrial proceedings. Having carefully considered the record, the undersigned recommends the district judge grant Defendant's motion for summary judgment.
I. Factual Background
At all relevant times, Plaintiff was a pretrial detainee incarcerated at Aiken County Detention Center (“ACDC”). Prior to the instant litigation, Plaintiff filed a complaint in this court on June 1, 2021, against Defendant, alleging that Defendant approached him on March 10, 2021, and embarrassed him by suggesting in front of other detainees that he practice better hygiene. [See ECF No. 28-2]. Plaintiff asserted that because of Defendant's public conversation about Plaintiff's hygiene, he was “publicly shamed, bullied, and ridiculed” by the other detainees. Id. On July 28, 2021, the court summarily dismissed Plaintiff's previous complaint, explaining that, without more, bullying and verbal abuse he alleged were insufficient to state a deprivation of constitutional rights. Id.
Plaintiff has since been released from ACDC.
Plaintiff argues that after the dismissal of his previous complaint, “Defendant stepped up his level of harassment towards plaintiff and their roommate Ronald Keith Kennedy, ” who also has a lawsuit pending against Defendant. [ECF No. 40 at 2 (citing Kennedy v. Jones, C/A No. 21-1097-DCN-PJG (filed April 14, 2021))].
Plaintiff filed the instant complaint against Defendant on August 9, 2021. [ECF No. 1]. Plaintiff asserts Defendant told other detainees that Plaintiff was a “snitch” and a “child molester.” Id. at 13. Plaintiff asserts Defendant's alleged conduct has caused him to be harassed and bullied by other detainees. Id. Additionally, Plaintiff contends he is now “taxed” by other detainees to access basic needs within ACDC such as food, the shower, and the use of the public phone. Id.
In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). However, Plaintiff's complaint is not verified. [See ECF No. 1]. Plaintiff's allegations as found in his complaint are summarized above for the sake of completeness.
Plaintiff has submitted multiple affidavits from other inmates. In these affidavits, one inmate declares under penalty of perjury as follows:
I, Daniel Reynolds, was playing cards when Deputy Jones, III, told myself and some other guys playing cards that plaintiff, Aron Salmeri, was a child molester, snitch. And he wore mirrors on his shoes to look up girls' dresses, later that day. I informed plaintiff, Aron Salmeri, of what Deputy Jones, third said.[ECF No. 41 at 3]. Additional inmates state they:
[H]eard Deputy Paul M. Jones III tell the Echo pod housing unit of the Aiken County Detention Center that anyone who files a grievance is dry snitching, and dry snitching will get you hurt. Furthermore, he stated they know sometimes people “slip” in the shower and get hurt.[ECF No. 26; ECF No. 40-1 at 1, 3].
Plaintiff also filed multiple inmate grievances against Defendant. As relevant here, Plaintiff stated in part, in a grievance filed June 29, 2021:
One of my roommates, detainee Galloway informed me that Jones had pulled him to the side, informing him of my charges. I do not feel a threat because my charges are not horribly bad, and most people in here know them anyway, but had they been worse, and had he been more prone to violence, that could have put me in danger.[ECF No. 28-3 at 16, see also Id. at 14 (“While mostly everyone in here knows my charges, and Galloway did not care, had my charges been worse, and if he did care, he could have been putting me in danger.”)].
On July 27, 2021, Plaintiff filed a grievance, stating as follows:
Yesterday, Deputy Jones III worked in e-pod, while he did not harass me directly such as he did last time he was in here, he did harass me indirectly like he did last time. Telling people I am a snitch, gay with my room mate, told my bunk mate to watch out for me, and told Daniel Reynolds I wore mirrors on my shoes and looked up girls dress[es] with them. As I am a decent acquaintance with these guys, had I not been, and had my charges been worse, he could have been putting me in danger. I would like to file harassment charges against him.Id. at 18.
Plaintiff's charges were indecent exposure and peeping tom, second offense. [See ECF No. 28-5, see also ECF No. 40 at 1 (“Plaintiff . . . was arrested . . . for the charges of peeping (second offense) and indecent exposure, ” although “the peeping charge was bound over as a first.”)].
Plaintiff requests an award of 1) “$50,000 for mental anguish and pain and suffering, ” 2) $100 for the “tax” he has paid to other detainees, and 3) all court fees. [ECF No. 1 at 6].
Plaintiff has also submitted what he purports to be evidence as to events not related to the instant complaint, including allegations that other deputies, not Defendant, have treated him unfairly in ongoing retaliation against him, [see ECF No. 33], and that Defendant has treated another detainee, Corey Beard, unfairly. [See ECF No. 26 at 2, ECF No. 40 at 5].
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, 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, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Eleventh Amendment Immunity
Plaintiff asserts claims pursuant to 42 U.S.C. § 1983. A civil action brought pursuant to 42 U.S.C. § 1983 provides a means to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States, but the statute is not, itself, a source of substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). “Section 1983 imposes liability on any person who, under the color of state law, deprives another person ‘of any rights, privileges, or immunities secured by the Constitution and laws.'” Doe v. Kidd, 501 F.3d 348, 355 (4th Cir. 2007) (citing 42 U.S.C. § 1983). “Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
The Eleventh Amendment provides “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI. The United States Supreme Court has long held the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001).
A plaintiff “is not entitled to monetary damages under § 1983 against Defendant in their official capacities.” Moneyhan v. Keller, 563 Fed.Appx. 256, 258 (4th Cir. 2014) (citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (holding that Eleventh Amendment bars suits against non-consenting state, its agencies, and its officers acting in their official capacities)). However, suits for damages against state officials sued in their individual capacity are not barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991) (“[T]he Eleventh Amendment does not erect a barrier against suits to impose ‘individual and personal liability' on state officials under § 1983.”) (citation omitted).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's claims against him in his official capacity.
2. Fourteenth Amendment Claims
Pretrial detainee claims against detention center officials regarding harassment and bullying are evaluated under the Due Process Clause of the Fourteenth Amendment rather than under the Eighth Amendment's proscription against cruel and unusual punishment. See Bell v. Wolfish, 441 U.S. 520, 535, n.16 (1979); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). “The due process rights of a pretrial detainee are at least as great as the eighth amendment protections available to the convicted prisoner; while the convicted prisoner is entitled to protection only against punishment that is ‘cruel and unusual,' the pretrial detainee, who has yet to be adjudicated guilty of any crime, may not be subjected to any form of ‘punishment.'” Martin, 849 F.2d at 870; see also Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992).
The Constitution imposes a duty on prison officials to “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). However, the Fourth Circuit has held that bullying, harassment, or other verbal abuse, without more, is insufficient to state a constitutional deprivation. See Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005) (“Mere threats or verbal abuse . . ., without more, do not state a cognizable claim under § 1983). Specifically, courts have held that “[w]hen a defendant makes comments that may constitute verbal abuse or harassment, those comments alone do not rise to the level of an Eighth Amendment violation.” Morva v. Johnson, C/A No. 7:09-00515, 2011 WL 3420650, at *7 (W.D. V.A. Apr. 4, 2011) (collecting cases). Even in instances when an officer has verbally harassed or made idle threats to the extent that it causes fear or emotional anxiety, the courts have found that these comments “do not constitute an invasion of any identified liberty interest.” See id.; see also Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985) (finding there is no federal constitutional right to be free from emotional distress, psychological stress, or mental anguish, and, hence no liability under § 1983 regarding such claims).
Here, Plaintiff has submitted evidence that Defendant informed at least one other detainee that Plaintiff was a “child molester, ” a “snitch, ” and that Defendant generally threatened that detainees who file grievances may get hurt. However, Plaintiff has submitted no admissible evidence of any effect that these words had, on either Plaintiff or others. Instead, Plaintiff's comments in his grievances indicate his belief that although these words may have created danger in other circumstances, under the circumstances found here, he did not fear any harm. Additionally, Plaintiff states in his response to summary judgment that “defendant attempted to cause harm” and “attempted to cause a security threat, ” but does not argue any harm or threat ensued, instead arguing that “the fact defendant failed to cause injury to plaintiff does not negate the fact that he did violate the 8th Amendment.” [ECF No. 40 at 4, 6].
Plaintiff alleges in his complaint that because of Defendant's statements, he has “documented anxiety” and he “was and continue[s] to be bullied by gangs.” [ECF No. 1 at 6; see Id. (“My life has been hell ever since Jones III has been telling other inmates I'm a snitch and child molester”)]. However, Plaintiff has failed to submit any evidence is support of these allegations.
As stated by the Fourth Circuit, “[i]t is impossible to minimize the possible consequences to a prisoner of being labelled a ‘snitch.'“ Miller v. Leathers, 913 F.2d 1085, 1088 n.1 (4th Cir.1990)). As held by this court, “a plaintiff may survive summary judgment by presenting evidence that he was exposed as a snitch and was attacked without having to conclusively prove, at this stage, that the exposure caused the attacks.” Jordan v. Hooks, C/A No. 6:13-CV-2247-BHH, 2015 WL 5785504, at *3 (D.S.C. Sept. 29, 2015).
However, Plaintiff cites to no case law, nor is the court aware of any, holding that a plaintiff may survive summary judgment by presenting evidence that he was exposed as a snitch, but then failing to provide evidence that anything happened thereafter as a result. As discussed below, case law cited by Plaintiff, and also found in Jordan, hold otherwise.
The undersigned does not review case law cited by Plaintiff or found in Jordan that does not address the relevant claim based on a summary judgment standard. See, e.g., Valandingham v. Moen, 963 F.2d 381 (9th Cir. 1992) (“In Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989), we held that Valandingham's allegations stated a claim for relief under § 1983.”).
The Eighth Circuit upheld the district court's denial of summary judgment to correctional officers, where the plaintiff submitted the following evidence, as summarized by the district court:
In this case, taking the evidence in the light most favorable to plaintiff, plaintiff has evidence that defendants were making serious threats against him, including threats to kill him. Although such threats may not be actionable alone, when combined with the other evidence presented by plaintiff which provides that (1) defendant Brigance gave another prisoner a razor to assault plaintiff, (2) plaintiff's cell door was popped open in administrative segregation allowing plaintiff to be assaulted, and (3) Brigance was attempting to recruit other prisoners to assault plaintiff [by telling others that the plaintiff was a snitch], there is sufficient evidence from which a reasonable jury could
find, if they believed plaintiff's and his witnesses' testimony, that defendants' actions were marked by intentional wanton cruelty and deliberate indifference to plaintiff's health and safety.Irving v. Dormire, C/A No. 04-4309-C-SOW, 2007 WL 9734155, at *4 (W.D. Mo. Mar. 13, 2007), aff'd in part, rev'd in part and remanded, 519 F.3d 441 (8th Cir. 2008); see also White v. Fox, 470 Fed.Appx. 214, 220 (5th Cir. 2012) (denying grant of summary judgment where the plaintiff submitted evidence that “1) Major Fox told Barnes that White had provided incriminating information against Barnes; 2) prisoners at the Darrington Unit learned that White was a snitch from prisoners at the Michael Unit; and 3) White was assaulted at the Darrington Unit shortly thereafter”).
Additionally, the Third Circuit has addressed a similar situation to that found here, upholding grant of summary judgment as follows:
While these allegations are particularly troublesome, as even the Appellees acknowledged during oral argument that calling an inmate a snitch may have dire consequences when overheard by other inmates . . . we ultimately agree with the District Court that there is insufficient evidence for a reasonable jury to conclude that the Correctional Officers “have, with deliberate indifference, exposed [Robinson] to an unreasonable risk of harm” . . . . The Eighth Amendment imposes on prison officials a duty “to protect prisoners from violence at the hands of other prisoners, ” Farmer, 511 U.S. at 833, 114 S.Ct. 1970, and that maxim is especially pertinent where, as Robinson contends in this case, it was prison officials that engendered the conditions for violence in the first place. Even so, the Eighth Amendment extends only to objectively, sufficiently serious deprivations, and Robinson has failed to offer sufficient evidence to support his claim.
In his deposition, Robinson stated that he had been called a snitch since 2008, and he submitted declarations by two inmates, Larry Pierce and Daniel Irwin, summarily asserting that Robinson has been called a snitch several times. But when Robinson was asked, “[w]hat has been the result of this claim that you're a snitch, what has happened to you, if anything, ” Robinson simply replied, “[it t]urned a lot of inmates against me that want to do something to me.” J.A. 143. He further asserted in his deposition that inmates were “always sending death threats and stuff like that, ” J.A., 143, but offered no documents or other evidence to substantiate this assertion and acknowledged that he had not had “any one-on-one contact with any inmate” because of the snitch comments or “had any fights with any inmates.” J.A. 144. As for the Pierce and Irwin declarations, they offer no details that would provide credence to their threadbare recital of Robinson's snitch allegations, and we have required more than conclusory affidavits to create a genuine issue of material fact . . . . In the absence of any substantiation of his allegations, especially in light of the alleged pervasiveness of the snitch comments, Robinson has failed to produce sufficient evidence from which a reasonable trier of fact could find in his favor.Robinson v. Danberg, 673 Fed.Appx. 205, 214-15 (3d Cir. 2016); see also Cobian v. McLaughlin, 717 Fed.Appx. 605, 610 (7th Cir. 2017) (“Cobian does not state a claim for relief because he did not allege any facts suggesting that he faced a substantial risk of being attacked by other inmates. Although being branded a ‘snitch' can pose a substantial risk of harm to inmates an inmate's cooperation with authorities poses no risk unless fellow prisoners believe the prisoner is a snitch.”) (citations omitted and emphasis in original)).
Although Plaintiff argues that “telling known gang members someone is a ‘snitch' and a “child molester” subjected him “to [a] substantial risk of harm” [ECF No. 40 at 4], he has failed to submit any evidence that any risk of harm existed. Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment.
Given the recommendation above, it is unnecessary to address Defendant's additional argument that he is entitled to qualified immunity.
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment [ECF No. 28].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and 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
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).