Opinion
Civil Action 6:22-cv-4208-MGL-KFM
08-07-2023
Jerome Armstrong, Plaintiff, v. Brandon Byrd, Vanissa Mitchell, Candice Jamison, India Easley, Judy Mather, Anthony Wright, Dwayne Campbell, Charles Truesdell, Leslie Brown, Kelvin Avery, Whitney Thurmond, Stanley Terry, Warden Charles Williams, and Associate Warden Thomas Robertson,[1] Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (doc. 8). The plaintiff, a state prisoner represented by counsel, filed this action pursuant to 42 U.S.C. § 1983. Under the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district court.
BACKGROUND AND FACTUAL ALLEGATIONS
The plaintiff is a prisoner who was housed at McCormick Correctional Institution ("MCI") in the South Carolina Department of Corrections ("SCDC") during the events in question (docs. 1, compl. ¶ 5; 12 at 1). The plaintiff alleges in his complaint that on November 27, 2019, he was in his bunk when his cellmate, Terrion Warren ("Mr. Warren"), attacked him without provocation and stabbed him with an ice pick approximately twelve times (doc. 1, compl. ¶¶ 16-17). The plaintiff alleges that the sole officer supervising his housing unit at that time, Brittany Pixley ("Ms. Pixley"), was not within sight or sound of his housing unit, and the attack was therefore able to continue for several minutes before any officers arrived (id. ¶ 16). The plaintiff contends that when Ms. Pixley arrived, she found Mr. Warren actively stabbing the plaintiff and saw blood all over the cell (id.). The plaintiff alleges that Ms. Pixley radioed for help and was very clear that an attack was in progress that presented a specific threat of serious harm or death to the plaintiff, which should have resulted in backup responding within five minutes or less (id.). However, it took Anthony Wright ("Mr. Wright"), Dwayne Campbell ("Mr. Campbell"), Charles Truesdell ("Mr. Truesdell"), Leslie Brown ("Ms. Brown"), Kelvin Avery ("Mr. Avery"), Whitney Thurmond ("Ms. Thurmond"), and Stanley Terry ("Mr. Terry") at least fifteen minutes to respond (id.). The plaintiff contends that when these defendants finally responded, they refused to open the cell door to intervene in the attack that was still in progress (id.). As a result, the attack was able to continue unfettered, and the plaintiff was delayed in receiving medical treatment (id.). The plaintiff submits that he received serious and life-threatening injuries from this attack (id. ¶ 17).
The plaintiff alleges that Mr. Warren has a long and well-documented history of violent attacks on other inmates and prison officials (doc. 1, compl. ¶ 12). In September 2000, while Mr. Warren was awaiting trial for a murder charge, he murdered Richland County jail officer Alvin S. Glenn (“Mr. Glenn”) (id.). Mr. Warren is currently serving a life sentence for two murders, two escape-related convictions, kidnapping, attempted armed robbery, and armed robbery (id.). The plaintiff also alleges that between 2010 and November 27, 2019, Mr. Warren received over fifteen disciplinary violations from the SCDC, including assaulting and battering an inmate with an intent to kill, possessing a weapon on multiple occasions, and striking an inmate with a weapon on multiple occasions (id.). As of November 27, 2019, Mr. Warren was classified as a level 3, maximum security inmate, and the plaintiff was classified as a level 2 inmate (id. ¶ 13). The plaintiff alleges that SCDC policy provides that level 3 inmates were not allowed to be housed with level 2 inmates (id.). Nevertheless, the plaintiff alleges that Brandon Byrd (“Mr. Byrd”), Vanissa Mitchell (“Ms. Mitchell”), Candice Jamison (“Ms. Jamison”), India Easley (“Ms. Easley”), Judy Mather (“Ms. Mather”), Warden Charles Williams ("Warden Williams"), and Associate Warden Thomas Robertson ("Mr. Robertson") housed the plaintiff and Mr. Warren together (id. ¶¶ 4, 13).
The plaintiff also alleges that Warden Williams and Associate Warden Robertson failed to provide an adequate number of properly trained security guards at numerous locations throughout MCI, including the housing unit where the plaintiff was located (doc. 1, compl. ¶ 14). The plaintiff alleges that Warden Williams and Associate Warden Robertson knew or should have known that their failure to provide adequate security measures would result in unsafe conditions for the inmate population (id.). Moreover, the plaintiff submits that SCDC policy provides that one officer cannot safely supervise two wings of a housing unit alone, but Mr. Wright staffed the housing unit where the plaintiff was located with only one officer, Ms. Pixley (id. ¶ 15). The plaintiff contends that this made it impossible for Ms. Pixley to perform rounds at the intervals required by SCDC policy or remain within sight and sound of the plaintiff's unit at all times (id.).
The plaintiff also alleges that Warden Williams, Associate Warden Robertson, and Mr. Terry presided over a long history of overcrowding and failing to provide adequate security and supervision over the inmates located at the facility; had a well-documented history of failing to supervise front line officers to ensure that policies were being followed and that policy violations were being addressed; and terminated, punished, and harassed good employees and retained and rewarded bad employees, which compounded the problems presented by understaffing (doc. 1, compl. ¶ 10). The plaintiff submits that the supervisory actions of Warden Williams, Associate Warden Robertson, and Mr. Terry led to a pervasive culture of no discipline and rule violations and an incredibly dangerous and lawless environment at the facility (id.). The plaintiff further alleges that prior to November 27, 2019, the South Carolina state legislature and SCDC commissioned and conducted security and staffing audits of the SCDC system, including of MCI, and findings revealed extreme shortages in staff, a lack of oversight by the defendants, and the inmate population being exposed to dangerous living conditions, extreme violence, and cruel and unusual treatment (id. ¶ 11). The plaintiff contends that the defendants were aware of these findings (id.).
On November 22, 2022, the plaintiff filed a complaint against the defendants pursuant to 42 U.S.C. § 1983 (doc. 1, compl.). On April 17, 2023, the defendants filed a motion to dismiss pursuant to Rule 12(b)(1) and (b)(6) (doc. 8). The plaintiff filed a response on April 19, 2023 (doc. 12), to which the defendants filed a reply on April 26, 2023 (doc. 13). Accordingly, this matter is now ripe for review.
APPLICABLE LAW AND ANALYSIS
As noted, the defendants move to dismiss the plaintiff's claims pursuant to both Rule 12(b)(1) and (b)(6) based on his failure to exhaust his administrative remedies (doc. 8). However, the undersigned declines to consider the defendants' exhaustion argument under the Rule 12(b)(1) standard based on a lack of subject matter jurisdiction. See Woodford v. Ngo, 548 U.S. 81, 101 (2006) ("[T]he PLRA exhaustion requirement is not jurisdictional[.]"); Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 678 (4th Cir. 2005) ("We therefore conclude that the PLRA's exhaustion-of-remedies requirement does not operate as a bar to the district court's exercise of its subject-matter jurisdiction."), abrogated on other grounds by Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017); Young v. Bufkin, C/A No. 9:21-cv-00950-DCC-MHC, 2022 WL 2374667, at *3 n.3 (D.S.C. May 17, 2022) ("To the extent Defendants also rely upon Rule 12(b)(1), . . . failure to exhaust under the PLRA does not implicate the Court's subject matter jurisdiction."), R&R adopted by 2022 WL 2359240 (D.S.C. June 30, 2022); Washington v. Fed. Bureau of Prisons, C/A No. 5:16-cv-3913-BHH-KDW, 2019 WL 2125246, at *5 (D.S.C. Jan. 3, 2019) ("As a result, it . . . appears that a claim of lack of administrative exhaustion is not properly raised under Rule 12(b)(1), which permits reference to outside documentation."), R&R adopted by 2019 WL 1349516 (D.S.C. Mar. 26, 2019).
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)).
“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Assn of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d).
Consideration of Documents
The defendants attached to their motion to dismiss various affidavits and grievance records related to their argument that the plaintiff failed to exhaust his administrative remedies (see docs. 8-2; 8-3; 8-4; 8-5; 8-6; 8-7; 8-8). The plaintiff argues that the undersigned should not consider these documents at this stage of the litigation (doc. 12 at 6-7). The undersigned agrees. As set out above, the court may consider documents attached to a motion to dismiss pursuant to Rule 12(b)(6) if those documents are integral to the complaint and authentic. See E.I. du Pont de Nemours & Co., 637 F.3d at 448. While the plaintiff alleges that the administrative remedy process was unavailable to him in his complaint, he does not mention or rely on these affidavits or his grievance records (see doc. 1, compl. ¶¶ 18-19). Accordingly, the undersigned finds that the defendants' documents are not integral to the plaintiff's complaint. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (explaining that a document is "integral to the complaint" "where the complaint relies heavily upon its terms and effect")). Additionally, the undersigned declines to convert the defendants' motion to dismiss into a motion for summary judgment, as the plaintiff asserts that he has not had an opportunity for full discovery on this issue (doc. 12 at 6). See Fed.R.Civ.P. 12(d) ("All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion."); E.I. du Pont de Nemours & Co., 637 F.3d at 448-49 ("Such a conversion is not appropriate where the parties have not had an opportunity for reasonable discovery.") (citation omitted).
The plaintiff also attached some of his medical records and excerpts from his deposition, should the court convert the defendants' motion to dismiss into a motion for summary judgment (see docs. 12-1; 12-2; 12-3; 12-4). For the same reasons, the undersigned has also not considered these documents herein.
Exhaustion of Administrative Remedies
The defendants move to dismiss the plaintiff's complaint for failure to exhaust administrative remedies (doc. 8-1 at 7). The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other things, that prisoners exhaust their administrative remedies prior to filing civil actions concerning prison conditions under Section 1983 or any other federal law. See Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court"). "[T]he PLRA's exhaustion requirement is mandatory," Anderson, 407 F.3d at 677, and "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA requires "proper exhaustion" of available administrative remedies prior to filing suit. Woodford, 548 U.S. 81, 93-94 (2006). As the Supreme Court noted, "Aggrieved parties may prefer not to exhaust administrative remedies for a variety of reasons," whether it be concerns about efficiency or "bad faith." Id. at 89-90. This is especially true in a prison context. Id. at 90 n.1. Nevertheless, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91.
"[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Thus, an administrative remedy is considered unavailable when: (1) "it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) it is "so opaque that it becomes, practically speaking, incapable of use"; or (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross v. Blake, 578 U.S. 632, 643-44 (2016).
The failure to exhaust is an affirmative defense, and the defendants bear the burden of showing that the plaintiff failed to exhaust his administrative remedies. See Anderson, 407 F.3d at 683. "[I]nmates are not required to specifically plead or demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216; see also Moore, 517 F.3d at 725 ("[I]nmates need not plead exhaustion, nor do they bear the burden of proving it"). However, “[a]n affirmative defense permits 12(b)(6) dismissal if the face of the complaint includes all necessary facts for the defense to prevail." Leichling v. Honeywell Int'l, Inc., 842 F.3d 848, 850-51 (4th Cir. 2016); see also Moore, 517 F.3d at 725 (citing Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir.2007) (“[W]e caution that only in rare cases will a district court be able to conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies and that he is without a valid excuse.”)).
Here, although not required, the plaintiff alleges as follows in his complaint:
EXHAUSTION OF ADMINISTRATIVE REMEDIES
18. The Plaintiff was only required to exhaust administrative remedies that were available to him. In this case, administrative remedies were unavailable to Plaintiff for various reasons, including that they were incapable of use to obtain relief, they operated as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates, they were so opaque that they were practically speaking incapable of use such that no ordinary prisoner could discern or navigate them, and prison administrators have a history of thwarting inmates from taking advantage of the grievance process through machination, misrepresentation, or intimidation.
19. For these reasons and others, administrative remedies were not available to the Plaintiff, and the Defendant failed to provide adequate security and supervision.(Doc. 1, compl. ¶¶ 18-19). While the defendants may ultimately succeed on this affirmative defense at a later stage in the litigation, the undersigned finds that the complaint does not include all of the necessary facts for the defense to prevail at this time.
The defendants argue that the court should nevertheless dismiss the plaintiff's complaint because they raised the affirmative defense and the plaintiff had an opportunity to respond (doc. 13 at 2-3) (citing Moore, 517 F.3d at 725 (“[E]ven if it is not apparent from the pleadings that there are available administrative remedies that the prisoner failed to exhaust, a complaint may be dismissed on exhaustion grounds so long as the inmate is first given an opportunity to address the issue.”)). However, in Moore, the court concluded that the district court did not commit reversible error by dismissing most of the plaintiff's claims based on his failure to exhaust, despite the failure to exhaust not being apparent from the face of the complaint, when the plaintiff had an opportunity to respond to the affirmative defense and attached his grievance records to his complaint. Id. at 725-26. Here, the undersigned has not considered the defendants' outside documentation and the plaintiff has raised the issue that he has not had a full opportunity for discovery. Therefore, the undersigned recommends that the district court deny the defendants' motion to dismiss based on a failure to exhaust.
Supervisory Liability
The defendants also argue that the plaintiff's claim for supervisory liability against Warden Williams, Associate Warden Robertson, and Mr. Terry should be dismissed for failure to state a claim (doc. 8-1 at 7-8). The doctrines of vicarious liability and respondeat superior are generally not applicable to suits under Section 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) (noting that "Section 1983 will not support a claim based on a respondeat superior theory of liability" (emphasis in original)). Indeed, in order to proceed on a supervisory liability theory, the plaintiff must allege that (1) the supervisor had actual or constructive knowledge that his/her subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury; (2) the supervisor's response to the knowledge was "so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices;" and (3) an affirmative causal link between the inaction by the supervisor and the particular constitutional injury suffered by the plaintiff. Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013).
The undersigned finds that the plaintiff's allegations, accepted as true, are sufficient to state a claim for supervisory liability against Warden Williams, Associate Warden Robertson, and Mr. Terry. As discussed above, the plaintiff alleges in his complaint that Warden Williams, Associate Warden Robertson, and Mr. Terry presided over a long history of overcrowding and failing to provide adequate security and supervision over the inmates located at the facility; had a well-documented history of failing to supervise front line officers to ensure that policies were being followed and that policy violations were being addressed; and terminated, punished, and harassed good employees and retained and rewarded bad employees, which compounded the problems presented by understaffing (doc. 1, compl. ¶ 10). The plaintiff submits that the supervisory actions of Warden Williams, Associate Warden Robertson, and Mr. Terry led to a pervasive culture of no discipline and rule violations and an incredibly dangerous and lawless environment at the facility (id.). The plaintiff further alleges that the South Carolina state legislature and SCDC conducted security and staffing audits of the SCDC system, including of MCI, and findings revealed extreme shortages in staff, a lack of oversight by the defendants, and the inmate population being exposed to dangerous living conditions, extreme violence, and cruel and unusual treatment (id. ¶ 11). The plaintiff contends that the defendants were aware of these findings (id.). The plaintiff also alleges that up to and including November 27, 2019, Warden Williams and Associate Warden Robertson failed to provide an adequate number of properly trained security guards at numerous locations throughout MCI, including the housing unit in which the plaintiff was located (id. ¶ 14). Moreover, he alleges Warden Williams and Associate Warden Robertson knew or should have known that their failure to provide adequate security measures would result in unsafe conditions for the inmate population (id.). The plaintiff also alleges that because Ms. Pixley was the only officer supervising his housing unit at the time of the attack and was not within sight or sound of the plaintiff's cell, the attack was able to continue for several minutes before any officers arrived (id. ¶ 16). In light of the foregoing, the undersigned finds that the plaintiff has pled that Warden Williams, Associate Warden Robertson, and Mr. Terry had actual or constructive knowledge that subordinates engaged in conduct posing a pervasive or unreasonable risk of constitutional injury, their response to the knowledge showed deliberate indifference, and there was an affirmative causal link between their inaction and the plaintiff's constitutional injury.
The defendants argue that the plaintiff's claim relates to a single incident, Mr. Warren's attack on him, which is insufficient for a supervisory liability claim (doc. 8-1 at 8). Although the Court of Appeals for the Fourth Circuit has recognized that "[o]rdinarily, [the plaintiff] cannot satisfy his burden of proof by pointing to a single incident or isolated incidents," Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citation omitted), the plaintiff here alleges “a long history” of supervisory issues that were documented and causally linked to his constitutional injury. See id. (“A plaintiff may establish deliberate indifference by demonstrating a supervisor's continued inaction in the face of documented widespread abuses.”) (citation and internal quotation marks omitted). Accordingly, the undersigned recommends that the district court deny the defendants' motion to dismiss the plaintiff's supervisory liability claim.
Failure to Protect
The defendants also move to dismiss the plaintiff's failure to protect claim against Mr. Wright, Mr. Campbell, Mr. Truesdell, Ms. Brown, Mr. Avery, Ms. Thurmond, and Mr. Terry (doc. 8-1 at 8-11). Prison officials are required to fulfill "certain basic duties" including the duty to take "'reasonable measures to guarantee the safety of the inmates.'" Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). However, not every injury suffered by a prisoner translates into a constitutional violation. Farmer, 511 U.S. at 833-34. To succeed on a claim for failure to protect, a prisoner must show: (1) "that he is incarcerated under conditions posing a substantial risk of serious harm" and (2) that prison officials exhibited deliberate indifference to his health or safety. Id. at 834. To meet the first prong, "a prisoner must allege a serious or significant physical or emotional injury resulting from the challenged conditions." Brown v. N.C. Dep't of Corr., 612 F.3d 720, 723 (4th Cir. 2010). To meet the second prong, a prisoner must demonstrate that the prison official had a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). "[T]hat state of mind is one of deliberate indifference to inmate health or safety." Id. (internal quotation marks and citation omitted). A prison official demonstrates deliberate indifference if he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. An inmate can, however, prove an official's actual knowledge of a substantial risk "in the usual ways, including inference from circumstantial evidence." Id. at 842. In other words, "a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id.
Additionally, the defendants argue that the plaintiff's claim for failure to protect against Mr. Byrd, Ms. Mitchell, Ms. Jamison, Ms. Easley, or Ms. Mather based on the response to the attack should be dismissed because the plaintiff does not allege that these defendants were personally involved in the incident on November 27, 2019 (doc. 8-1 at 9). However, it appears that the plaintiff did not bring this failure to protect claim against these defendants. The relevant allegations in the plaintiff's complaint only mention Mr. Wright, Mr. Campbell, Mr. Truesdell, Ms. Brown, Mr. Avery, Ms. Thurmond, and Mr. Terry (doc. 1, compl. ¶¶ 16-17). Moreover, in his response, the plaintiff only argues this claim with regard to Mr. Wright, Mr. Campbell, Mr. Truesdell, Ms. Brown, Mr. Avery, Ms. Thurmond, and Mr. Terry (see doc. 12 at 18-20). Accordingly, the undersigned has addressed this claim solely regarding Mr. Wright, Mr. Campbell, Mr. Truesdell, Ms. Brown, Mr. Avery, Ms. Thurmond, and Mr. Terry herein.
Although "prison guards have no constitutional duty to intervene in the armed assault of one inmate upon another when intervention would place the guards in danger of physical harm," the Court of Appeals for the Fourth Circuit has explained that "completely failing to take any action to stop an ongoing assault on a prisoner can amount to deliberate indifference." Raynor, 817 F.3d at 128 (citing Odom v. S.C. Dep't of Corr., 349 F.3d 765, 773 (4th Cir.2003) ("[A] correctional officer who stands by as a passive observer and takes no action whatsoever to intervene during an assault violates the [Eighth Amendment] rights of the victim inmate."); Williams v. Mueller, 13 F.3d 1214, 1216 (8th Cir.1994) ("A prison official acts with deliberate indifference to an inmate's safety when the official is present at the time of an assault and fails to intervene or otherwise act to end the assault.")).
Here, the plaintiff alleges that Ms. Pixley radioed for help regarding Mr. Warren attacking the plaintiff and was very clear that an attack was in progress that presented a specific threat of serious harm or death to the plaintiff, but Mr. Wright, Mr. Campbell, Mr. Truesdell, Ms. Brown, Mr. Avery, Ms. Thurmond, and Mr. Terry took at least fifteen minutes to respond (doc. 1, compl. ¶ 16). Moreover, the plaintiff asserts that when these defendants arrived at his cell, they refused to open the cell door to intervene in the attack that was still in progress (id.). As a result, the attack was able to continue unfettered and the plaintiff was delayed in receiving medical treatment (id.). Ultimately, the plaintiff alleges that he was stabbed twelve times, which resulted in serious and life-threatening injuries (id. ¶ 17).
The defendants argue that the plaintiff has failed to state a claim for failure to protect against Mr. Wright, Mr. Campbell, Mr. Truesdell, Ms. Brown, Mr. Avery, Ms. Thurmond, and Mr. Terry because the plaintiff failed to allege where these defendants were working at the time of the attack, whether they had the keys necessary to open the plaintiff's cell, or whether they attempted to verbally break up the altercation upon their arrival (doc. 8-1 at 10). However, the plaintiff has pled that he experienced a serious physical injury and that the defendants, despite having knowledge that the plaintiff was being attacked in a manner that posed a risk to his life, took at least fifteen minutes to respond and did not open the cell door when they arrived. While the defendants' arguments may have merit at a later stage in the litigation, the plaintiff has sufficiently stated a claim of failure to protect to survive the defendants' motion to dismiss. See Raynor, 817 F.3d at 128 ("[C]ourts have found that a corrections officer's failure to intervene in a beating can be the basis of [§ 1983] liability if the officer had a reasonable opportunity to act and simply refused to do so.") (citation and internal quotation marks omitted); e.g., Dizzley v. Moss, C/A No. 8:18-cv-01692-SAL, 2020 WL 3026485, at *2-3 (D.S.C. June 5, 2020) (denying summary judgment on a failure to protect claim where the plaintiff alleged that he was attacked by his cellmate with a knife, he screamed "Open the door he's got a knife," and officers arrived carrying guns but did not open the cell door until after the plaintiff apprehended his cellmate). Therefore, the undersigned recommends that the district court deny the defendants' motion to dismiss this claim as alleged against Mr. Wright, Mr. Campbell, Mr. Truesdell, Ms. Brown, Mr. Avery, Ms. Thurmond, and Mr. Terry.
Cell Assignment
The defendants also argue that the plaintiff's claim regarding his cell assignment against Mr. Byrd, Ms. Mitchell, Ms. Jamison, Ms. Easley, Ms. Mather, Warden Williams, and Associate Warden Robertson should be dismissed because inmates do not have a constitutional right to cellmates of their choice, nor a particular custody, security, or classification status (doc. 8-1 at 11-12). The plaintiff, however, argues that his claim is not based on a constitutional right to a particular cell assignment but on the defendants' deliberate indifference to the risk of housing the plaintiff with Mr. Warren (doc. 12 at 16-17). In support of his claim, the plaintiff cites to failure to protect cases (see id. at 16-17) (citing Sweat v. Reynolds, C/A No. 9:11-1706-MGL, 2013 WL 593660 (D.S.C. Feb. 15, 2013); Ferola v. Eagleton, C/A No. 9:15-2006-RBH-BM, 2016 WL 5844159 (D.S.C. Aug. 26, 2016), R&R adopted by 2016 WL 5661704 (D.S.C. Sept. 30, 2016); Jeter v. Musier, C/A No. 2:19-cv-3343-SAL, 2021 WL 2072589 (D.S.C. May 24, 2021)). Accordingly, the undersigned has addressed the plaintiff's claim herein as a failure to protect claim based on the defendants housing him with Mr. Warren.
Again, the defendants argue that the plaintiff's claim based on his cell assignment against Mr. Wright, Mr. Campbell, Mr. Truesdell, Ms. Brown, Mr. Avery, Ms. Thurmond, and Mr. Terry should be dismissed because the plaintiff does not allege that these defendants were personally involved in the housing assignments (doc. 8-1 at 11). However, it appears that the plaintiff did not bring a failure to protect claim against these defendants. The relevant allegations in the plaintiff's complaint only mention Mr. Byrd, Ms. Mitchell, Ms. Jamison, Ms. Easley, Ms. Mather, Warden Williams, and Associate Warden Robertson (doc. 1, compl. ¶¶ 4, 12-13). Moreover, in his response to the defendants' motion, the plaintiff only argues this claim with regard to Mr. Byrd, Ms. Mitchell, Ms. Jamison, Ms. Easley, Ms. Mather, Warden Williams, and Associate Warden Robertson (see doc. 12 at 18-20). Accordingly, the undersigned has addressed this claim solely regarding these latter defendants herein.
It is undisputed that "a prisoner does not have a constitutional right to a particular custody, security, or classification status; nor does an inmate have a constitutional right to his choice of roommate." Glass v. Hill, C/A No. 1:20-1972-SAL-SVH, 2021 WL 5235298, at *5 (D.S.C. Nov. 10, 2021), R&R adopted by 2021 WL 5966288 (D.S.C. Dec. 16, 2021). However, "while [a plaintiff] does not have a constitutional right to choose where he will be housed or who will be his cellmate, [d]efendants cannot be deliberately indifferent to a known risk of harm to an inmate." Sweat, 2013 WL 593660, at *7 (citation omitted); see also Ferola, 2016 WL 5844159, at *11 ("Classification and cell assignment issues are uniquely within the provence of prison officials, and the Defendants cannot be held liable for classification and cell assignment decisions absent a specific known risk of harm to an inmate that they fail to address.") (citations omitted).
The plaintiff argues that Mr. Byrd, Ms. Mitchell, Ms. Jamison, Ms. Easley, Ms. Mather, Warden Williams, and Associate Warden Robertson were deliberately indifferent to a known, specific risk of harm by housing him with Mr. Warren (doc. 1, compl. ¶ 13). Specifically, the plaintiff alleges that these defendants housed him, a level 2 inmate, with Mr. Warren, a level 3, maximum security inmate, in contravention of SCDC policy (id.). Moreover, he alleges that Mr. Warren was known to be violent towards other inmates and prison officials, as evidenced by Mr. Warren murdering Mr. Glenn in jail and his disciplinary violations for assaulting and battering an inmate with an intent to kill, possessing a weapon on multiple occasions, and striking an inmate with a weapon on multiple occasions (id. ¶ 12). The plaintiff also highlights that Mr. Warren is currently serving a life sentence for two murders, two escape-related convictions, kidnapping, attempted armed robbery, and armed robbery (id.). The defendants, however, argue that the plaintiff does not allege that they were aware that housing him with Mr. Warren posed a substantial risk of harm (doc. 8-1 at 12). The defendants highlight that the plaintiff's complaint does not contain any allegations that he informed the defendants that Mr. Warren threatened him or posed a risk to his safety or that he and Mr. Warren had any altercations prior to November 27, 2019 (id.).
The defendants are correct that questions remain regarding the full circumstances of the plaintiff and Mr. Warren being housed together. See Martin v. Early, C/A No. 4:19-3568-SAL-TER, 2020 WL 8816020, at *5 (D.S.C. Dec. 10, 2020) ("Defendants are not subject to liability just because they placed Davis and Plaintiff in the same cell and subsequently, there was an altercation. . . .") (citing Fuller v. Cnty. of Charleston, 444 F.Supp.2d 494, 498 (D.S.C. 2006) (finding that the "fact that plaintiff was put in contact with other inmates, some of whom were incarcerated for violent crimes, is not evidence of any actual knowledge on the part of the prison officials that plaintiff was in danger," and that "[occasional, isolated attacks by one prisoner on another may not constitute cruel and unusual punishment, absent some evidence that the prison officials actually were aware of the risk of harm")); Ferola, 2016 WL 5844159, at *10 ("It is simply a truism that state prisons are dangerous places - and there is nothing remarkable about Plaintiff being housed with other individuals with criminal backgrounds and histories - that is why they are all there. However, Plaintiff has provided no evidence to show that any named Defendant could or did have any forewarning that Plaintiff and Crawford would be involved in an altercation on January 11, 2014. . . ."). However, courts test the sufficiency of the complaint at the motion to dismiss stage, and the undersigned finds that, under the circumstances presented here, the defendants' arguments are better suited for a later stage in the litigation after the parties have had a full opportunity for discovery. Therefore, the undersigned recommends the district court deny the defendants' motion to dismiss as to this claim.
The defendants also argue that the plaintiff cannot bring a claim for monetary damages for violation of the South Carolina Constitution (doc. 8-1 at 12-13). However, the plaintiff recognizes in his response that he is not bringing such a claim (doc. 12 at 20).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the court recommends that the defendants' motion to dismiss (doc. 8) be denied.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
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 250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).