Opinion
C. A. 5:22-cv-02381-TMC-KDW
05-16-2024
Derell D. Wiggins, Plaintiff, v. Neville Richardson, David Johnson, Jacquetta Riley, LPN, and Sydney Salavec, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
On July 25, 2022, Plaintiff Derrell D. Wiggins brought several causes of action pursuant to 42 U.S.C. § 1983 against Defendants Neville Richardson, David Johnson, Jacquetta Riley, LPN, and Sydney Salavec. ECF No. 1. Plaintiff was housed at Gilliam Pyschiatric Hospital (“Gilliam”) located at Kirkland Correctional Institution during the time of the events outlined in his Complaint. Defendants Richardson, Johnson, and Salavec filed a Motion for Summary Judgment on July 6, 2023. ECF No. 31.Plaintiff filed his Response on August 21, 2023. ECF No. 36. Defendants filed a Reply on August 24, 2023. ECF No. 37. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), this Magistrate Judge is authorized to review pretrial matters and submit findings and recommendations to the District Court. This matter is now ripe for review.
Defendant Jacquetta Riley, LPN, was apparently served on August 14, 2022 by leaving a copy of the summons and Complaint with her grandmother at the address provided for service. ECF No. 11-1. Defendant Riley has not made an appearance in this lawsuit, and she did not join the Motion for Summary Judgment.
I. Factual Background
At all times relevant to the allegations in Plaintiff's Complaint, Defendant Neville Richardson was a supervisor or administrator with the South Carolina Department of Corrections (the “SCDC”), and he supervised other employees at Gilliam. ECF No. 1 at 2. Defendant David Johnson was a correctional officer at Gilliam. ECF No. 1 at 2. Defendant Jacquetta Riley, LPN and Defendant Sydney Salavec were medical providers working for SCDC. ECF No. 1 at 3.
Gilliam houses inmates with severe mental illnesses, including inmates who are involuntarily committed or unstable. ECF No. 1 at 3. Plaintiff alleges that Kirkland Correctional Institution, where Gilliam is located, is a maximum-security facility with a long history of overcrowding and failing to provide adequate security and supervision to its inmates. ECF No. 1 at 5. According to Plaintiff, he was admitted by his physician to Gilliam from McCormick Correctional Institution (“McCormick”) related to mental health issues, including hallucinations, on or about July 17, 2019. ECF No. 1 at 4-5; see also Deposition of Derrell Wiggins, 37:3-18; attached to Pl.'s Br. at ECF No. 36-1. Plaintiff was in protective custody while at Gilliam, and because of this status, inmates were to be within lockup, secured, and monitored at all times. ECF No. 1 at 5. Defendant Johnson testified that protective custody inmates are supposed to have other inmates kept away from them. Deposition of David Johnson, Jr., 34:1-6; attached to Pl.'s Br. at ECF No. 36-2. Plaintiff was put on protective custody due to a fear of gang members. Wiggins Dep. 72:1-6. Because he was in protective custody, Plaintiff testified that the procedure provides he should have been in handcuffs prior to going to take a shower. Wiggins Dep. 20:1-5. Plaintiff alleges this policy was routinely not followed by Defendants. ECF No. 1 at 5.
According to Plaintiff, on July 26, 2019, Defendant Richardson released Plaintiff from his cell sometime in the morning so that Plaintiff could take a shower. Wiggins Dep. 15:1117. Plaintiff was not handcuffed at the time he was taken to the shower. Wiggins Dep. 16:1215. Plaintiff was headed to the bottom shower when another inmate, Lord Allah, called out to Plaintiff and told him, “he wanted a piece of” Plaintiff. Wiggins Dep. 17:16-22. Plaintiff recalls this as being his first interaction with Lord Allah. Wiggins Dep. 17:20-22. Once this occurred, Plaintiff waited for Defendant Richardson to return to the unit, and once he returned, Plaintiff believes he told Defendant Richardson that Lord Allah was trying to make trouble with him. Wiggin Dep. 18-19. In response, Plaintiff recalls Defendant Richardson told him to “stop being scared” and to continue to the shower area. Wiggins Dep. 19:2-10; ECF No. 1 at 8. Plaintiff alleges during this time there were no officers located in the Gilliam unit. Wiggins Dep. 17:46. Plaintiff alleges that a few minutes later, he was physically assaulted and anally raped by the inmate, Lord Allah, while in the shower. Wiggins Dep. 20: 13; 23:11-25. Plaintiff states that when the officers returned, less than five minutes later, Lord Allah was still raping him. Wiggins Dep. 23:24-25; 29:17-21. The officers apparently administered chemical munitions to both Plaintiff and Lord Allah. Wiggins Dep. 29:10-16. Plaintiff testified that he remained in the shower after the incident, trying to let the spray rinse his face off. Wiggins Dep. 35:3-14. According to the testimony of Defendant Johnson, he did not see either inmate naked, and it is his belief that Plaintiff is not telling the truth about this incident. Johnson Dep. 57:13-22.
For example, Defendant Johnson also testified the inmates were not wet, a point that is apparently in dispute. Johnson Dep. 58:10-17. This testimony appears consistent with a medical record provided from immediately after the altercation where Plaintiff requested to be able to shower because “he did not actually get to shower.” Plaintiff's Medical Records, attached as Exhibit “B” to Defs.' Br. at 31-3, p. 69. Nonetheless, this appears to be a disputed fact.
It is Plaintiff's contention that he notified Defendants that he had been sexually assaulted. Wiggins Dep. 35:21-25; 36.This fact is refuted by Defendants Richardson, Johnson, and Salavec. Defendant Johnson states that Plaintiff never informed him (or the staff) that he had been sexually assaulted, and Defendant Salavec also testified she was never informed by Plaintiff that he was sexually assaulted. Johnson Dep. 63:10-16; Deposition of Sydney Salavec, 139:11-19, attached to Defs.' Br. at 31-5. Plaintiff testified that he asked “staff members” for medical care, including Defendant Salavec. Wiggins Dep. 51:5-14. Plaintiff testified that Defendant Salavec met him at his cell following the incident, and at that time, he told her he was sexually assaulted. Wiggins Dep. 52:3-10. Despite naming her as a Defendant in this case, Plaintiff testified that he does not remember a nurse by the name of Jacquetta Riley. Wiggins Dep. 52:22-24. Plaintiff was seen in a treatment room at Gilliam following the incident for a post use of force evaluation. Wiggins Dep. 53:3-6. Plaintiff testified that he recalls that he wanted medical treatment in the form of a hospital visit because he had been sexually assaulted. Wiggins Dep. 54:2-7. At that time a PREA investigation was opened, and Plaintiff recalls being seen by a nurse, Ms. Burdette, who scheduled him to have a rape exam. Wiggins Dep. 92. That appointment was cancelled, which Ms. Burdette attributed to a decision by an unnamed associate warden. Deposition of Samantha Burdette, 54:21-25; 55, attached to Pl.'s Br. at 36-4.
As to Defendant Johnson, Plaintiff's response as to whether he informed this officer that he was raped was, “I think so, yes sir.” Wiggins Dep. 36:1-5.
PREA stands for Prison Rape Elimination Act, which governs policies regarding rape in prisons.
Upon return to McCormick, on July 31, 2019, Kevin Cunningham, a mental health provider, visited Plaintiff's cell, at which time Plaintiff reported a rape. Wiggins Dep. 56:1525. Based on the medical records, it appears that at this point, the investigation began. Plaintiff believes Defendants consciously failed to ensure he received the proper medical care. ECF No. 1 at 8-9. Plaintiff alleges he remained in Gilliam until July 30, 2019, and as a result of the incident described in the Complaint, he suffered mental and physical injuries. ECF No. 1 at 9. Plaintiff alleges Defendants Richardson and Johnson consciously failed to provide adequate security on the day of the incident in question. ECF No. 1 at 5. Plaintiff's medical records do not include any indication of a sexual assault until July 31, 2019.
II. Standard of Review
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 nonmovant 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. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
III. Analysis
1. Eighth Amendment Claims
Within his Complaint, Plaintiff alleges (and subsequently argues in his brief) that he has brought an Eighth Amendment claim for failure on the part of Defendants to provide medical treatment, and an Eighth Amendment claim for failure to protect Plaintiff from harm. Defendants argue that these claims are subject to summary judgment. As an initial matter, Defendants argue that Plaintiff has failed to properly allege a failure to protect claim, and thus this claim is barred by Rule 8 of the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 8(a)(2) provides in pertinent part, “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Defendants argue that, within the Complaint, Plaintiff states only two causes of action: (1) violation of Plaintiff's Eight Amendment constitutional rights for failure to provide medical care; and (2) a violation of Plaintiff's Fourteenth Amendment due process rights. Plaintiff points to allegations within his first cause of action for an Eighth Amendment violation which state that, “The Defendants were consciously and deliberately indifferent to the Plaintiff . . . in the following particulars . . . in consciously and deliberately failing to protect the Plaintiff from an assault (both physical and sexual)” and “failing to protect Plaintiff from serious harm.” Pl.'s Br. at 6; see also ECF No. 1 at 11. Aside from these allegations, Plaintiff details the inmate-on-inmate assault within his Complaint, as well as the alleged failure on the part of one or more officers to act. Though the heading of the first cause of action could have been more artfully drafted, the undersigned finds that the standard under Rule 8, providing notice of the claim for relief has been met. See Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that “determining whether a complaint states on its face a plausible claim for relief . . . will ‘be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'”) (quoting Ashcroft v. Iqbal,556 U.S. 662, 679 (2009)). Plaintiff's allegations of deliberate indifference and failure to protect implicate the Eighth Amendment's prohibition against cruel and unusual punishment and will be considered below.
a. Failure to Protect
Prison officials have a duty to maintain “reasonable measures to guarantee the safety of the inmates.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016). Protecting prisoners from violence imposed by another inmate falls under this duty. Id. Specifically, the Eighth Amendment imposes a duty on prison officials “to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citation omitted). The burden falls on the plaintiff to show that officials violated the Eighth Amendment. Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir. 2014). Not every injury suffered by a prisoner due to the hands of another invokes constitutional liability on prison officials. Farmer, 511 U.S. at 834.
To prevail on a claim of failure to protect from violence, an inmate must establish two prongs. A prisoner must show: (1) that he is incarcerated under conditions posing a substantial risk of serious harm; and (2) that prison officials were deliberately indifferent to his health and safety. Id. Under the first prong, the inmate must demonstrate a serious deprivation of his rights in the form of a serious or significant physical or emotional injury. Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016). This objective inquiry “requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original)). Under the second prong, the prison official must have a sufficiently culpable state of mind. Pugh, 817 F.3d at 127-28 . To establish this, the inmate must demonstrate that the prison official's state of mind was one of “deliberate indifference to inmate health or safety.” Id. at 128 (quoting Farmer, 511 U.S. at 834). To be deliberately indifferent, evidence must show a prison official had actual knowledge of an excessive risk to an inmate's safety. Id. at 128. Deliberate indifference “lies somewhere between negligence and purpose or knowledge: namely, recklessness of the subjective type used in criminal law.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015). A prison official may not be liable if he “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 a prison official not liable for failing to draw the inference that an inmate was exposed to harm). Alternatively, a prison official who actually knew of a substantial risk to inmate health or safety may still be free from liability if he responded reasonably to the risk.” Farmer, 511 U.S. at 844
Neither Plaintiff nor Defendants focus on whether the first prong of the analysis has been met-that is whether Plaintiff suffered a serious deprivation of his rights in the form of an injury. However, within the deposition testimony provided (as well as the medical records), it is clear that Plaintiff and another inmate were involved in an altercation that necessitated the use of pepper spray and, according to Plaintiff, resulted in him being sexually assaulted. Evidence within the record, in the form of medical records and Plaintiff's deposition testimony, support his allegations that Plaintiff suffered from a sexual assault. See Police Services Investigative Report, attached as Exhibit “E” and Plaintiff's Medical Records, attached as Exhibit “B” to Defs.' Br.; ECF Nos. 31-3; 31-6. While the parties may dispute the veracity of the sexual assault, at the summary judgment stage, evidence of the non-moving party is to be believed and all justifiable inferences drawn in his favor. See Anderson, 477 U.S. at 255. It is also undisputed that an altercation occurred in which Plaintiff suffered some form of injury. See Exhibit B, ECF No. 31-3 at 67-68. Accordingly, the undersigned finds that there is evidence to support a finding that Plaintiff suffered a serious deprivation of his rights. The undersigned thus turns to the second prong of the analysis.
While Plaintiff generally argues that all Defendants violated the Eighth Amendment, it appears clear from the substance of the Complaint, as well as Plaintiff's own Response, that Plaintiff makes a specific failure to protect claim only as to Defendant Richardson.Plaintiff points to the following evidence to support a finding that a genuine issue of fact remains as to whether Defendant Richardson is liable under a failure to protect claim: (1) Plaintiff testified that upon being let out of cell that morning to shower, he was threatened by another inmate, Lord Allah; (2) Plaintiff told Defendant Richardson almost immediately that he had been threatened by Lord Allah; (3) Defendant Richardson failed to investigate the threat and told Plaintiff to stop being scared just before Plaintiff was attacked; (4) Plaintiff was in protective custody at the time of the incident, which independently suggests Plaintiff should have been kept away from all other inmates. Defendants argue that Plaintiff has failed to show these Defendants were aware of a substantial risk of harm to Plaintiff, and that they disregarded that risk. As to Defendant Johnson, they argue there is no evidence that he could have prevented the altercation, and Defendant Salavec was in no way involved during the altercation. See Defs.' Br. at 15. The undersigned agrees with respect to these two Defendants.
Defendants argue that while Plaintiff alleges that all three Defendants are liable under a “failure to protect theory,” Plaintiff has failed to establish this claim. They argue that Defendant Salavec had no involvement with Plaintiff until after the altercation, and there was no evidence that Defendant Johnson could have prevented the altercation. Defs.' Br. at 15. Defendant Johnson and Plaintiff both testified that he became involved after the incident in question occurred. See Johnson Dep. 48-49; Wiggins Dep. 17:7-19. In Plaintiff's Response, beyond an allegation that “Defendants” are liable under this theory, Plaintiff presents no evidence or argues that anyone other than Defendant Richardson is liable for failing to protect Plaintiff. Accordingly, the undersigned believes it is clear that Plaintiff only alleges that Defendant Richardson violated the Eighth Amendment based upon his failure to protect Plaintiff from violence at the hands of another inmate. In any event, Plaintiff does not otherwise argue that there is a genuine dispute as to whether the other Defendants should be granted summary judgment on this ground.
However, as to Defendant Richardson, Plaintiff has provided his own deposition as a means to establish there is a genuine dispute of the facts in this case regarding Defendant Richardson's liability. According to Plaintiff, on the day of altercation, Defendant Richardson let him out of his cell to go take a shower. Wiggins Dep. 15:11-17. Plaintiff further testified that on this particular day, Defendant Richardson did not put him in handcuffs. Wiggins Dep. 16:12-21. Plaintiff testified that it was not normal for the inmates at Gilliam to be uncuffed when out of their cell. Wiggins Dep. 19:11-21. Plaintiff also testified he was in protective custody during this time and should have been handcuffed prior to being in the shower. Wiggins Dep. 20:1-5. Plaintiff testified that he never saw Defendant Richardson lock up Lord Allah, and after proceeding to the shower, Plaintiff was assaulted by Lord Allah. Wiggins Dep. 20:10-16. According to Defendant Johnson, inmates in protective custody are provided that classification to keep other inmates away from them. Johnson Dep. 35:1-6. His testimony supports Plaintiff's allegations that Plaintiff's status should have alerted officers to a heightened risk to his safety.
Plaintiff further testified that he was headed to the bottom shower when Lord Allah stopped him and told him he “wanted a piece” of Plaintiff. Wiggins Dep. 17:16-19. Plaintiff testified this was the first time he had ever interacted with Lord Allah. Wiggins Dep. 17:2022. Plaintiff testified he had no idea why Lord Allah spoke to him. Wiggins Dep. 17:23-25. Plaintiff testified that the only two inmates out of their cells were he and Lord Allah. Wiggins Dep. 18:3-10. Plaintiff then waited before heading to the shower so that he could speak to an officer. Wiggins Dep. 18:17-20. Plaintiff testified that once Defendant Richardson returned, he let Richardson know that “the inmate was trying to get me to go to the shower and making trouble with me.” Wiggins Dep. 19:2-4. Plaintiff testified that Defendant Richardson told him to continue to the upstairs shower, and that Defendant Richardson told him to “stop being scared.” Wiggins Dep. 19:5-10. Plaintiff further testified that Defendant Richardson directed Plaintiff to head to the upstairs shower, and that Defendant Richardson would lock Lord Allah in his cell. Wiggins Dep. 19:8-10.
Plaintiff points to this evidence to support his claim that Defendant Richardson, with knowledge that Plaintiff was in protective custody, disregarded a specific threat from an inmate (Lord Allah) and thereafter, Plaintiff was almost immediately harmed, specifically, that he was sexually assaulted. Finally, Plaintiff argues that these facts, along with his contention that inmate assaults had been a common problem in SCDC facilities, establishes that there is a genuine dispute as to whether Defendant Richardson violated Plaintiff's rights afforded under the Eighth Amendment.
As to Plaintiff's argument that Defendant Richardson is liable under the theory that he failed to adhere to the policy of handcuffing protective custody inmates, the violation of a prison policy by prison official does not, by itself, constitute a violation of the Constitution, or of a prisoner's civil rights. Thompson v. Patterson, No. 9:10-cv-2381-HFF, 2011 WL 5024344, at *4 (D.S.C. July 14, 2011), adopted by, Thompson v. Patterson, 2011 WL 5024303 (D.S.C. Oct. 20, 2011). As to the more general argument regarding the knowledge of a substantial risk of harm, Defendants generally argue that Plaintiff fails to show that Defendant Richardson had “actual knowledge” that Inmate Lord Allah posed a substantial risk of harm to Plaintiff, and that he disregarded that risk. Defs.' Br. at 15. Defendants further argue that Plaintiff failed to show Defendants wantonly and obdurately failed to take precautions for Plaintiff's safety or could have otherwise drawn an inference that Plaintiff was at risk of harm. Defs.' Br. at 15-16. However, Plaintiff affirmatively stated in his deposition testimony that Defendant Richardson brought him out of his cell to shower, that Plaintiff informed Defendant Richardson that he was threatened by Lord Allah, and that Defendant Richardson responded by telling him to stop being scared and directed him to head to the shower. Defendants do not address this testimony in their Reply, though one can infer by the testimony provided by Defendant Johnson, as well as the arguments made in their brief, that Defendants' version of events differs from the Plaintiff's as to what occurred on the day in question. Indeed, there is some evidence in the record that could support an inference that Defendant Richardson did not feel the threat was credible. For example, Defendant Johnson indicated that Lord Allah had never before been a problem. Johnson Dep. 49:8-15. Still, it is not the duty of this court to weigh the evidence or testimony of the parties. Tekmen v. Reliance Standard Life Ins. Co., 55 F.4th 951, 959 (4th Cir. 2022) (“Ordinarily in the summary judgment context, the court ‘cannot weigh the evidence or make credibility determinations'” nor may a judge “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Thus, the issue here is whether Plaintiff has established a genuine dispute sufficient to withstand summary judgment based on these facts.
Defendants cite to Rich v. Bruce, 129 F.3d 336 (4th Cir. 1997), ostensibly for the proposition that an officer who is aware of a “general risk” is not subjectively reckless in light of that risk. However, Rich is distinguishable from the current case before this court. In Rich, a plaintiff held in a supermax security institution was subject to detailed procedures for searching and securing inmates when removed from cells. 129 F.3d at 336-37. The officer in question, Bruce, was handling the movement of both the plaintiff and another highly dangerous inmate, Higgins. Id. at 337. Several months prior, the plaintiff had stabbed Higgins, and Higgins and the plaintiff were therefore considered enemies. Id. Due to a misunderstanding, while Bruce was returning the plaintiff to his cell, another prison official opened a door that allowed Higgins to stab the plaintiff. Id. In reversing the judgment by the district court in favor of the plaintiff, the Fourth Circuit reasoned that the district court “actually found only that Bruce had actual knowledge of facts from which a reasonable person might have drawn the inference that Bruce's actions exposed Rich to a substantial risk of serious harm, not that Bruce actually drew this inference.” Id. at 338. Going further, the Fourth Circuit explained that the district court only found that Bruce knew of the general risks that all inmates posed one another. Id. This case makes clear that, pursuant to Farmer, a prison official must “actually have drawn the inference” Id. at 340. In a footnote, the Rich court elaborated that the officer's “actual knowledge” that the plaintiff was in danger from the offending inmate as a general matter, without knowledge that the officer's actions “uniquely increased the risk,” is insufficient to satisfy Farmer.
Aside from the fact that in Rich, the officer's actions violated a prison policy concerning the movement of inmates, Rich is distinguishable from the present case because here we have an officer with apparent actual knowledge of an immediate threat to another inmate, and the threatening inmate was in the same location of Plaintiff. Armed with this alleged knowledge, Defendant Richardson, according to Plaintiff's testimony, advised him to “stop being scared,” “to head to the shower,” and that the officer would “lock Lord Allah in his cell,” which he apparently did not do. Viewing this testimony in a light most favorable to Plaintiff, Defendant Richardson indicated that he would take some action to ensure Lord Allah was not able to be near Plaintiff but did not do so. Further, he apparently understood that Plaintiff was fearful of Lord Allah. In other words, a factfinder could conclude that, based on the evidence currently before the court, Defendant Richardson, drew the inference that a risk existed to Plaintiff, and knew his actions could uniquely increase Plaintiff's risk of an immediate assault given the fact that Plaintiff advised him of an immediate threat of him going to the shower, but Defendant Richardson still ordered him to the shower.For this reason, the undersigned recommends denying summary judgment to Defendant Richardson on a failure to protect claim based on the current record before the court.
Of course, as previously mentioned, there is evidence that supports the contention that Defendant Richardson did not perceive Plaintiff's claims to be a credible threat. For example, Defendant Johnson testified that Lord Allah had never given them any problems prior. However, this court cannot draw its own inferences as to Defendant Richardson's mindset, particularly when sufficient evidence is not before the court to support what Defendant Richardson's knowledge might have been on the day in question.
b. Medical Treatment
Defendants next argue that Plaintiff fails to establish that Defendants violated his constitutional rights in the course of medical treatment provided to him subsequent to the incident in question. Plaintiff, in turn, argues that he was denied necessary medical care from Defendants. The government is obligated to provide medical care to incarcerated individuals. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Supreme Court has held that deliberate indifference to a prisoner's serious medical needs constitutes the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment, whether it is in response to a prisoner's needs, there is an intentional denial or delay in access to medical care, or there is intentional interference with prescribed treatment. Estelle, 429 U.S. at 104. In order to establish that Defendants deprived Plaintiff of adequate medical care, Plaintiff must establish first that he suffered a serious medical condition; that is, one that is either “diagnosed by a physician as mandating treatment” or is “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (quoting Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). Second, Plaintiff must establish that the prison official was deliberately indifferent to an inmate's serious medical needs. Id. Stated another way, deliberate indifference is met by showing a defendant actually knew of and ignored an inmate's serious need for medical care. Parrish ex. Rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004). This standard is not met by an individual acting with mere negligence or civil recklessness. Lightsey, 775 F.3d at 178.
The crux of Plaintiff's argument that Defendants denied Plaintiff necessary medical treatment is that, despite Plaintiff informing Defendants that he was the victim of a sexual assault, he was denied medical treatment in connection with his contention that he was raped. Pl.'s Br. at 12. He further argues that he informed all Defendants regarding this rape, but they deliberated refused to provide medical treatment for that issue. Plaintiff argues that his testimony alone is sufficient on this matter to create a genuine issue of material fact as to this claim. To bring a denial of medical treatment claim against non-medical personnel, one must show that these named officials were “personally involved” with a denial of treatment, deliberately interfered with treatment or tacitly authorized or were indifferent to the prison physicians' misconduct. Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837, (1994).
Here Plaintiff argues he told two officers, Defendants Richardson and Johnson, and a mental health professional, Defendant Salavec, among other staff, that he needed medical attention. In Plaintiff's deposition testimony, he indicates that he informed Defendants Richardson, Johnson, and Salavec that he was raped. Wiggins Dep. 36:1-22. Plaintiff further testified that he asked to be transported to a hospital or treated for a sexual assault, but he was refused treatment; specifically, that he was not transported to the hospital. Wiggins Dep. 5354. Plaintiff, however, does admit that he was seen immediately after the incident. Wiggins Dep. 52:3-8. Defendants contend that Plaintiff did not allege a sexual assault immediately after the incident on July 26, 2019, and that this fact is further bolstered by the lack of evidence within any of his medical records of this allegation until July 31, 2019. The medical records show that Plaintiff was treated at least six times after the altercation with the other inmate, including several times on the actual day of the altercation. Exhibit B to Defs.' Br.; ECF No. 31-3. Specifically, it appears that Plaintiff was seen at 10:11 a.m. on July 26, 2019, approximately 40 minutes after the altercation occurred. ECF No. 31-3. That record reflects that he was seen by Defendant Salavec, a mental health professional, at his cell. ECF No. 312. The medical notes do not indicate that Plaintiff reported a sexual assault. He was also seen on the same day for chemical munition exposure related to the altercation. ECF No. 31-3 at 66-67. That record indicates that while Plaintiff suffered a scratch on the back of his neck, there were no other further injuries noted, and Plaintiff reported no pain. Id. Finally, the court was provided a Police Services Investigation Report, dated July 31, 2019, approximately five days after the altercation, noting that Plaintiff reported a sexual assault. ECF No. 31-6. At that time, Plaintiff had a PREA assessment. Plaintiff was initially going to be transported to a hospital for a rape exam; however, he ultimately remained at McCormick, apparently due to the transfer exceeding the five-day period of time after a sexual assault. ECF No. 31-6 at 35; see also Burdette Dep. 54-55. Ms. Burdette further testified that while a nurse may assess an inmate who has alleged a sexual assault, the determination as to whether an inmate may go to the hospital for a further exam is up to the PREA coordinator. Burdette Dep. 17-18. During his PREA assessment, Ms. Burdette explained that Plaintiff refused to allow an assessment of his anus. Burdette Dep. 41:1-8. The report reflects that Plaintiff was offered mental health counseling and support counseling. ECF No. 31-6 at 36.
While Plaintiff argues that he was denied medical treatment, both the medical records and his own testimony support a finding that he was immediately treated after the altercation. Plaintiff's more specific argument is that he was denied treatment related to a sexual assault, even though the records before the court show that on July 31, 2019, an Incident Report indicates that an investigation began based on a sexual assault report, and he received medical treatment related to this allegation. ECF No. 31-6. Defendants argue that this was the first time Plaintiff reported a rape, and at that time the proper PREA protocol was followed. Plaintiff refutes that he reported the rape for the first time on July 31, 2019. However, even viewing the facts in a light most favorable to Plaintiff, the undersigned recommends granting summary judgment to Defendants as to Plaintiff's medical indifference claim.
While Plaintiff argues he should have been taken to the hospital immediately, the fact that Defendants did not provide the type of medical treatment he requested does not amount to an Eighth Amendment violation under these facts. First, disagreements in medical care do not amount to a § 1983 violation. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Second, Plaintiff was seen by both his mental health counselor and a nurse the day of and after the altercation, both on July 26, 2019 and July 27, 2019. See ECF No. 31-3. Subsequently, Plaintiff was also seen by one or more medical care providers, including an assessment specifically related to allegations of a sexual assault on July 31, 2019. Third, Samantha Burdette's testimony, the head nurse at McCormick at the time of the incident, indicated that the PREA coordinator ultimately made the call as to whether an inmate could be transferred to a hospital for a rape exam. In other words, even assuming these Defendants had knowledge of a sexual assault, they could not have made the decision or required Plaintiff to be assessed at a hospital. Additionally, Plaintiff was ultimately evaluated for his allegation of a sexual assault, albeit a few days after Plaintiff alleges it was initially reported. While he refused to have parts of his body assessed or evaluated for injury, he was offered mental health counseling, and an investigation occurred into his allegations. Ultimately, Plaintiff's claims were unsubstantiated. See Exhibit E, ECF No. 31-6 at 3.
To the extent Plaintiff's Eighth Amendment claim is premised on delayed medical care, the plaintiff must show “the delay results in some substantial harm to the patient,” such as “marked exacerbation of the prisoner's medical condition or frequent complaints of severe pain.” Formica v. Aylor, 739 Fed.Appx. 745, 755 (4th Cir. 2018) (internal quotation omitted) (emphasis in original); Sharpe v. S.C. Dep't of Corr., 621 Fed.Appx. 732, 734 (4th Cir. 2015); Webb v. Hamidullah, 281 Fed.Appx. 159, 166-67 (4th Cir. 2008). As pointed out by Defendants, Plaintiff does not allege that in the few days between the assault and his PREA assessment, he suffered from any delay in treatment. Indeed, in the days between the investigation of the sexual assault and the altercation itself, Plaintiff was consistently seen by medical providers. In short, while Plaintiff alleges he informed Defendants that he was assaulted, this allegation alone does not suffice to establish deliberate indifference on their part, particularly when one considers that Plaintiff was immediately seen by his mental health counselor and a nurse. Coleman v. Stevenson, No. 0:09-cv-872-HMH, 2010 WL 2990737, at *4 (D.S.C. June 22, 2010), adopted by, 2010 WL 2990740 (D.S.C. July 26, 2010), aff'd, 407 Fed.Appx. 709 (4th Cir. 2011) (“mere knowledge is not sufficient to establish personal participation.”). Even accepting as true Plaintiff's testimony that he informed these Defendants of a sexual assault, the evidence before the court establishes that Plaintiff was consistently seen by medical staff, and within a few days of the altercation, he was assessed for his contention that he was sexually assaulted. Thus, the undersigned finds that even viewing the facts in a light most favorable to Plaintiff, Defendants are entitled to summary judgment as to his Eighth Amendment claim based upon deliberate indifference to his medical needs for the reasons stated herein.
2. Fourteenth Amendment Claims
Defendants further argue that they are entitled to summary judgment on Plaintiff's Fourteenth Amendment due process violations claim. Within Plaintiff's Complaint, he alleges due process violations related to the deliberate failure to have the appropriate number of staff at Gilliam; in failing to provide adequate security; in failing to properly monitor inmates; in failing to protect Plaintiff from an assault; in failing to properly supervise employees; in failing to recognize a clearly dangerous situation after multiple events providing notice; in failing to take action to prevent inmates from injury; in failing to adhere to the policy and procedures of SCDC; in being deliberately indifferent to Plaintiff's health and safety; in failing to properly classify Plaintiff; in failing to properly house Plaintiff; and in intentionally housing Plaintiff at a dangerous location. ECF No. 1 at 13-15. Defendants argue they are entitled to summary judgment on these claims. In his Response, Plaintiff does not offer a response to Defendants' argument that they should be granted summary judgment as to the due process claims.
The Due Process Clause of the Fourteenth Amendment states, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. Amend XIV, Section 1. Prisoners are entitled to claim the protections of the Due Process Clause. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). While an inmate's rights may be diminished by the needs of the institutional environment of the penal system, a prisoner is not “wholly stripped” of the protections afforded under the Constitution while incarcerated. Id. at 555. In order to state due process violation has occurred, a plaintiff must (1) identify a protected liberty or property interest; and (2) demonstrate deprivation of that interest without due process of law. Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir, 2015).
Defendants first argue that to the extent Plaintiff alleges Defendants' conduct violated the PREA, his allegations do not provide any basis for a § 1983 claim under this statute. It is well established that the “PREA does not give rise to a private right of action.” Jones v. Greenville Cnty. Det. Ctr., No. 4:21-cv-1587-TLW-TER, 2021 WL 4690999, at *2 (D.S.C. Oct. 7, 2021). “The PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue...[t]he statute does not grant prisoners any specific rights.” Chinnici v. Edwards, No. 1:07-cv-229, 2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 279-80 (2002). Accordingly, any claims premised on Defendants' alleged violations of the PREA should be dismissed as a matter of law. See Byrd v. South Carolina Dep't of Corr., No. 5:11-cv-3340-MGL, 2013 WL 5309759, at *11 (D.S.C. Sept. 19, 2013) (“Because § 1983 itself does [not] create any rights, and the text and the structure of the PREA provide no indication that Congress intended to create new individual rights, there is no basis for a private right of action for inmates to sue prison officials for noncompliance with the Act.”) (footnote and citations omitted). Similarly, as previously pointed out, to the extent Plaintiff alleges Defendants' conduct violated SCDC policy, “violations of prison policy alone are not sufficient to state a constitutional violation under Section 1983.” Givens v. Aaron, No. 3:14-cv-378-FDW, 2016 WL 4546448, at *5 (D. N.C. Aug. 31, 2016) (citing Jackson v. Sampson, 536 Fed.Appx. 356, 357 (4th Cir. 2013)).
As to any of Plaintiff's remaining allegations, Plaintiff offers no argument or otherwise offers any support for his claims that these Defendants violated his due process rights. Plaintiff's allegations and the basis for his Complaint are all directly related to the altercation that occurred on July 26, 2019. Plaintiff does not argue that he was wrongly classified; indeed, he testified in his deposition as to why he was in protective custody. Wiggins Dep. 57; 70-71.
Plaintiff offers no evidence to support any of his other allegations comprising his Fourteenth Amendment claims. For this reason, the undersigned recommends granting summary judgment to Defendants as to these claims.
3. Qualified Immunity
Defendants argue they are entitled to qualified immunity. “Qualified immunity protects officers who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). When a qualified immunity defense is raised, the courts apply a two-part test. First, the court must determine whether the facts viewed in the plaintiff's favor make out a violation of one's constitutional rights, and second, whether the violated right was clearly established at that time. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555 U.S. 233, 231 (2009)). Here, the undersigned has determined that Plaintiff has failed to establish any constitutional violation on the part of Defendants Salavec and Johnson. Thus, the undersigned recommends finding they are entitled to qualified immunity.
As to Defendant Richardson, the undersigned has considered whether he is entitled to qualified immunity as to Plaintiff's failure to protect claim. Under the second prong, “the state of the law at the time must have given an official ‘fair warning' that his treatment of the prisoner was unconstitutional.” Pfaller v. Amonette, 55 F.4th 436, 445 (4th Cir. 2022). In order to perform this analysis, a court needs to pinpoint the constitutional right at issue in order to determine whether it is clearly established. Id. (citing Halcomb v. Ravenell, 992 F.3d 316, 31920 (4th Cir. 2021)). In so doing, a court must avoid defining the right at a “high level of generality” because the question is whether the “violative nature of particular conduct is clearly established.” Pfaller, 55 F.4th at 445 . There is no requirement that the conduct in question has been previously held as unlawful for a “reasonable” official to be on notice that his or her conduct violated that right. Id. at 445-446 (citing Scinto v. Stansberry, 841 F.3d 219, 235 (4th Cir. 2016)).
In Thorpe v. Clarke, the Fourth Circuit recently held that when a plaintiff has made a showing “sufficient to demonstrate an intentional violation of the Eighth Amendment, ‘they have also made a showing sufficient to overcome any claim to qualified immunity.'” 37 F.4th 926, 934 (4th Cir. 2022) (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n. 15 (3d Cir. 2001)). However, in Pfaller, the Fourth Circuit further explained Thorpe does not “eliminate the clearly established law prong in every case where a dispute of fact related to defendant's mental state remains.” 55 F.4th at 446 (emphasis in original). This is true because Eighth Amendment cases run a broad spectrum, and in some is it necessary to conduct an analysis to determine whether there is an “attenuation between the risk of harm and the defendant's knowledge” that certain specified conduct is constitutionally deficient. Id. (emphasis in original). Here, Defendants argue they are entitled to qualified immunity, but the argument is premised upon the fact that no case law exists to suggest that failing to report a sexual assault violated someone's constitutional rights.
The Fourth Circuit employs a split burden of proof for the qualified immunity defense. The plaintiff bears the burden of proving the first prong, and the [officer] bears the burden on the second prong. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Henry v. Purnell, 501 F.3d 374, 377-78 & n.4 (4th Cir. 2007)). Defendant Richardson does not provide an analysis as to whether he would be entitled to qualified immunity on the failure to protect claim. Plaintiff points out that the right to be protected from harm from other inmates has been clearly established. Pl.'s Br. at 14. Further, Plaintiff argues that he specifically told Defendant Richardson that he was being threatened immediately prior to the altercation, and Defendant Richardson “mocked him.” ECF No. 36 at 14. Defendants do not argue that qualified immunity should be granted to Defendant Richardson specifically as to the failure to protect claim. Thus, the undersigned finds that Defendant Richardson has not established the second prong of the analysis and, based on the record currently before the court, does not find qualified immunity applies to Defendant Richardson as to the failure to protect claim.
IV. Recommendation
The undersigned has carefully considered the arguments made by all parties in this case. After considering these arguments, it is recommended that Defendants' Motion for Summary Judgment, ECF No. 31, be granted as to all claims except for Plaintiff's failure to protect claim against Defendant Richardson.
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
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).