Opinion
C/A No. 2:16-CV-1359-BHH-MGB
07-23-2018
Kimberly Arnold and Hope Yarborough, PLAINTIFFS, v. WILLIAM WELCH, a.k.a. BILL WELCH, Individually and In His Official Capacity As Officer of the South Carolina Department of Corrections; MARIAN BOULWARE, Individually and In Her Official Capacity As Warden of Goodman Correctional Institution; LIEUTENANT E. GRISSET, Individually and In Her Official Capacity as Officer of the South Carolina Department of Corrections at Goodman Correctional Institution; SARGENT ELMA DORSEY, Individually And In Her Official Capacity as Officer of the South Carolina Department of Corrections; CAROL SCOTT, Individually and In Her Official Capacity as Officer of the South Carolina Department of Corrections; RAYFORD MILLER, Individually and In His Official Capacity as Officer of the South Carolina Department of Corrections; LIEUTENANT BARBARA BRYANT, Individually and In Her Official Capacity As Officer of the South Carolina Department of Corrections; MAJOR FRANSCINA GILLARD, Individually and In Her Official Capacity as Officer of The South Carolina Department of Corrections; CAPTAIN CHARLES BREVARD, Individually and In His Official Capacity As Officer of the South Carolina Department of Corrections; and M. TAYLOR, Individually and In Her Official Capacity as Employee of the South Carolina Department of Corrections, DEFENDANTS.
REPORT AND RECOMMENDATION
The Plaintiffs, through counsel, brought this action under 42 U.S.C. § 1983 against employees of the South Carolina Department of Corrections ("SCDC"). At all times relevant to this case, the Plaintiffs were in the custody of SCDC. This matter is before the court on the Defendants' Motion for Summary Judgment. (Dkt. No. 46.) This matter is referred to the undersigned United States Magistrate Judge for consideration. For the reasons stated herein, the undersigned recommends that the Defendants' Motion for Summary Judgment (Dkt. No. 46) be granted.
Procedural Background
The Plaintiffs filed the Complaint on April, 26, 2016. (Dkt. No. 1.) The Plaintiffs filed an Amended Complaint on August 16, 2016. (Dkt. No. 8.) The Defendants filed waivers of service on August 29, 2016. (Dkt. No. 16.) On September 12, 2016, the Plaintiffs filed the Second Amended Complaint on September 12, 2016, with the consent of the Defendants. (Dkt. No. 20; see also Dkt. No. 25.) The Defendants filed an Answer on October 5, 2016. (Dkt. No. 28.) The motion now before the court, the Defendants' Motion for Summary Judgment, was filed on October 9, 2017. (Dkt. No. 46.) The Plaintiffs filed their Opposition to Motion for Summary Judgment on November 22, 2017. (Dkt. No. 55.) The Defendants filed a Reply on December 6, 2017. (Dkt. No. 58.) The court issued a Text Order on February 22, 2018, granting the parties' joint motion to stay mediation until after the Motion for Summary Judgment is decided by the court. (Dkt. No. 64.)
The Plaintiffs did not respond to several of the Defendants' arguments for summary judgment. "[W]here a party fails to respond to the opposing party's argument in support of the opposing party's motion for summary judgment, the party who fails to respond will be found to have conceded to that argument." Jenkins v. Pate, No. 5:15-cv-02241-JMC-KDW, 2016 WL 5799313, at *14 (D.S.C. May 26, 2016), report and recommendation adopted, No. 5:15-cv-02241-JMC, 2016 WL 5661700 (D.S.C. Sept. 30, 2016), appeal denied, 722 F. App'x 345 (4th Cir. 2018) (citations omitted). The Plaintiffs did not respond to the Defendants' Motion for Summary Judgment as to all official capacity claims and for failing to state a claim against Defendants Grisset, Dorsey, Scott, Miller, Bryant, Taylor, and Brevard. (Dkt. No. 55.) Therefore, in addition to the reasons stated herein, the court recommends that summary judgment be granted as to all official capacity claims and as to Defendants Grisset, Dorsey, Scott, Miller, Bryant, Taylor, and Brevard on the ground that the Plaintiffs have conceded these arguments.
Facts of the Case
Plaintiff Arnold was incarcerated at Goodman Correctional Institution ("GCI") beginning in June of 2011. (Dkt. Nos. 46-1 at 2; 46-2 at 3.) In February of 2013, the Plaintiff began working in the horticulture department at GCI. (Id) Defendant Welch was the supervisor of the horticulture department, and Defendant Boulware was the warden of GCI. (Dkt. Nos. 46-1 at 2; 55-3; 55-2 at 3.)
Plaintiff Arnold testified in her deposition that Defendant Welch began forcing physical contact with her on or about May 1, 2013. (Dkt. No. 46-1 at 3.) Plaintiff Arnold testified that the contact began with "lingering touches" on her buttocks. (Id.) She testified that she was frequently alone with Defendant Welch. (Id. at 3.) The Plaintiff testified that Defendant Welch attempted to isolate himself with the Plaintiff and forcefully sexually assault her almost every day. (Id. at 6.) Plaintiff Arnold testified that she regularly rode alone with Defendant Welch in a small, white pickup truck. (Id.at 4-5.) Defendant Welch would drive the truck to a secluded spot behind a dumpster at GCI. (Id.) In the Second Amended Complaint, Plaintiff Arnold alleges that Defendant Welch would then ask her to perform fellatio on him, but she would ignore the request, change the subject, or exit the vehicle. (Dkt. No. 20 ¶ 27.)
Plaintiff Arnold testified that in May or June of 2013, Defendant Welch grabbed her, rubbed his groin against her buttocks, and kissed her cheek and neck in the greenhouse. (Dkt. No. 46-1 at 6-7.) Plaintiff Arnold testified that in July of 2013, Defendant Welch trapped her in his office and physically pinned her into the corner. (Dkt. No. 46-1 at 8.) Defendant Welch then grabbed Plaintiff Arnold's hand and forced it into his pants. (Id.) Defendant Welch then placed his hand down Plaintiff Arnold's pants and underwear and forced his fingers inside of her body. (Id.) The Plaintiff testified that she was crying while Defendant Welch gyrated and held her there several minutes. (Id.)
The Second Amended Complaint alleges that this incident took place on August 26, 2013. (Dkt. No. 20 ¶ 40.) In her deposition, Plaintiff Arnold stated that the incident "actually happened around June—I mean July .... That was one of the later incidents." (Dkt. No. 46-1 at 8.)
Plaintiff Yarborough was housed at GCI beginning on July 25, 2013, and immediately began working in the horticulture department. (Dkt. No. 55-4 at 3.) Plaintiff Yarborough was only housed at GCI for two weeks during the summer of 2013. (Id. at 5.) Plaintiff Yarborough testified that Defendant Welch touched her "numerous" times starting with "lingering" touches "every chance that he got." (Dkt. No. 55-4 at 5-6.) Plaintiff Yarborough testified that on one morning in the tool shed, Defendant Welch pressed his crotch against her buttocks. (Id. at 6.)
Plaintiff Arnold testified that on approximately August 7, 2013, she was upset regarding Welch's conduct. (Dkt. No. 55-1 at 9.) Plaintiff Arnold spoke to Sergeant Shannon, who asked her if there was "anything going on." (Dkt. No. 55-1 at 9-10.) Shannon asked Plaintiff Arnold if there was anything Plaintiff Arnold needed to tell her. (Id.) Plaintiff Arnold told her there was not. (Id.) Shannon then replied that, if Plaintiff Arnold did wish to tell her something, then Plaintiff Arnold better not say anything that would keep Shannon at work past 6:00 p.m. (Id.) Shannon told Plaintiff Arnold to go "go back" and "really think about what you want to tell me." (Id.) Plaintiff Arnold then asked Shannon hypothetical questions about what would happen to her if she reported being the victim of untoward conduct. (Id.) Plaintiff Arnold asked if she would get in trouble or get sent to "lock-up." (Id.) Shannon told Plaintiff Arnold that was not how it worked and that she would not get in trouble unless she was lying. (Id.) Shannon sent Plaintiff Arnold back to her cell with instructions to think about if she wanted to report anything and that Shannon would be back at work at 6:00 a.m. (Id. at 11.)
Plaintiff Arnold and Plaintiff Yarborough submitted written statements reporting Defendant Welch's conduct on August 8, 2013, the day after Plaintiff Arnold's interaction with Shannon. (Dkt. Nos. 46-5, 46-6.) Plaintiff Arnold initially reported the conduct to Defendant Grisset, who took her statement. (Dkt. No. 46-1 at 10-11.) Plaintiff Arnold testified in her deposition that she gave her statement to Defendant Grisset in Building 4 at GCI and that she and Plaintiff Yarborough were then moved to Building 2 because Defendant Welch was circling the grounds looking for them. (Dkt. No. 46-1 at 10-12.) Plaintiff Arnold testified that, on that same day, she spoke with Investigator Rayford Miller. (Id.) Additionally, Plaintiff Arnold testified that she and Plaintiff Yarborough were brought to Defendant Gillard, a major with SCDC, to report the incidents to her. (Id. at 14.) Following the conversation with Defendant Gillard, Plaintiff Arnold testified that she was taken to the administration building at Broad River Institution to take a polygraph examination. (Id.) Investigator Miller was in and out of the room during the polygraph examination. (Id. at 13.) The results of Plaintiff Arnold's polygraph examination were "inconclusive." (Dkt. No. 46-8.)
Plaintiff Arnold testified that the polygraph examiner stated "Well, we know she's lying but just go ahead and bring her on" prior to the test. (Dkt. No. 55-1 at 14.) Plaintiff Arnold testified this comment was intimidating to her. (Id.)
Plaintiff Arnold testified that she requested protective custody when she reported Defendant Welch's conduct. (Dkt. No. 46-1 at 14-16.) Plaintiff Arnold understood that to mean she would be transferred to Camille Correctional Institute ("CCI") and housed in a segregation unit. (Id.) Following the polygraph examination, Plaintiff Arnold was taken to CCI to be housed. (Id.)
Plaintiff Yarborough's experience on August 8, 2013, was similar to Plaintiff Arnold's. Plaintiff Yarborough gave her initial report and written statement of the conduct to Defendant Dorsey. (Dkt. No. 46-3 at 7.) On the same day, Plaintiff Yarborough spoke with Defendant Grisset and Investigator Miller about Defendant Welch's alleged conduct. (Id. at 8.) Defendant Yarborough requested protective custody and was transferred out of GCI to CCI. (Dkt. Nos. 46-4; 55-4 at 7.) Plaintiff Yarborough was not given a polygraph.
At Defendant Boulware's direction, the Plaintiffs' reports were forwarded to SCDC police services, and Investigator Miller was assigned to the case. (Dkt. No. 55-2 at 4-5, 7.) On August 12, 2013, Defendant Welch was placed on administrative suspension retroactively effective as of August 9, 2013, pending the results of the investigation. (Dkt. No. 46-7.) Investigator Miller prepared a report based on his investigation. (Dkt. No. 46-8.) The report indicated that Miller interviewed both of the Plaintiffs and Defendant Welch. Defendant Welch denied all allegations of wrongdoing. (Id.) Defendant Welch took a polygraph examination, which showed "no deception." (Dkt. No. 46-8.) Miller concluded, "There is insufficient evidence to support an allegation of sexual misconduct." (Id.)
After receiving the report from Investigator Miller, Defendant Boulware recommended that the Plaintiffs be charged with a disciplinary infraction for lying. (Dkt. No. 55-2 at 11.) Defendant Carol Scott issued an incident report charging Plaintiff Arnold with lying to an employee or knowingly making a false statement. (Dkt. No. 55-2 at 12.) Plaintiff Yarborough was charged as well. (Dkt. No. 55-4 at 11-12.) Both of the Plaintiffs attended Administrative Resolution hearings on August 20, 2013, before Defendant Gillard. (Dkt. Nos. 46-9, 46-10.) Defendant Gillard found that the Plaintiff had committed the charge of "831 lying to an employee or knowingly making false statements." (Id.) Both of the Plaintiffs were given the choice of resolving their disciplinary charges "administratively" by accepting canteen restriction for 30 days, cell restriction for 45 days, and failure to earn good time credit for "3/20" days. (Id.)
Both Plaintiffs signed an "Inmate's Acceptance of Informal or Administrative Resolution." (Dkt. Nos. 46-9, 46-10.) On the forms, both Plaintiffs were presented the following choice:
___ Yes, I accept the sanction listed above. I understand that I have the privilege of requesting this case be referred to a disciplinary hearing, and I waive that privilege. I further agree that by accepting this informal or administrative resolution, I waive all appeals, including those pursuant to Al-Shabazz v. State.(Dkt. Nos. 46-9, 46-10 (emphasis in original).) Both of the Plaintiffs marked "Yes" and signed their respective forms on August 30, 2013. (Id.)
___ No, I do not want to accept the sanctions listed above and request that this case be referred to a disciplinary hearing.
In her deposition, Plaintiff Arnold testified that she felt like she "had no choice" but to accept the sanction because "[t]hey were already saying I was lying," and she had already spent over 20 days in "lockup" and was being "treated like a criminal." (Dkt. No. 55-1 at 20.) Plaintiff Yarborough stated in her deposition that she accepted the sanctions because she felt like she "didn't have another choice" because if she proceeded to a full hearing, she would have still been found guilty and risked additional sanctions. (Dkt. No. 55-4 at 12.)
Neither Plaintiff attempted to file a grievance regarding the hearing. Plaintiff Arnold testified that she did not realize that accepting her sanction signed away her right to file a grievance until later. (Dkt. No. 55-1 at 22.) Plaintiff Arnold acknowledged, however, that the form stated she was waiving any right to file a grievance. (Id.) Plaintiff Arnold testified that she had signed the same form previously on prior disciplinary charges but was "not really worried about what the paper says because I know I [committed the prior offenses]." (Id. at 22-23.)
Second Amended Complaint
The Second Amended Complaint contains a single cause of action entitled "Federal Cause of Action (Violation of the Eighth and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983). (Dkt. No. 20 ¶¶ 81-82.) In the introduction (¶ 14), facts section (¶ 63), and twice within the singe cause of action (¶¶ 85-86), the Plaintiffs stated that this action was brought for violation of the Eighth and Fourteenth Amendments. In the Plaintiff's [sic] Opposition to Motion for Summary Judgment (Dkt. No. 55), the Plaintiffs appear to argue that they are prosecuting § 1983 claims for "Warden Boulware's violation of their First Amendment rights" and their "Fourth Amendment rights." (Dkt. No. 55 at 20, 21-22.) There are no references in the Second Amended Complaint to the First or Fourth Amendments. The Second Amended Complaint contains two passing references to retaliation, once by Boulware (¶ 58) and once that the Plaintiffs feared retaliation by Welch (¶ 71.). Simply put, the Second Amended Complaint does not contain any claims under §1983 for violations of the First or Fourth Amendments. The Plaintiffs have not filed a motion to amend to add these claims. "It is well-settled in this district that new matters cannot be raised in a response to a motion for summary judgment." Grant v. Stevenson, No. 6:15-cv-1697-BHH-KFM, 2015 WL 10437773, at *9 (D.S.C. Dec. 8, 2015), adopted 2016 WL 892768 (D.S.C. Mar. 9, 2016) (citing White v. Roche Biomedical Labs., Inc., 807 F. Supp. 1212, 1216 (D.S.C. 1992) (noting that "a party is generally not permitted to raise a new claim in response to a motion for summary judgment")). Therefore, the undersigned only addresses the claim brought in the Second Amended Complaint.
Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Analysis
In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) that he or she "has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States," and (2) "that the conduct complained of was committed by a person acting under color of state law." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983); see also Gomez v. Toledo, 446 U.S. 635, 540 (1983); Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). In a § 1983 action, "liability is personal, based upon each defendant's own constitutional violations." Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
Exhaustion under the PLRA
The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Through the enactment of this statute, "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001); see also Porter v. Nussle, 534 U.S. 516, 532, (2002) (holding "that the PLRA's exhaustion requirement 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.") A failure to exhaust all levels of administrative review is not "proper exhaustion" and will bar actions filed by inmates under any federal law, including § 1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386 (2006). The administrative process that a prisoner must exhaust is "defined not by the PLRA, but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007). Accordingly, before the Plaintiffs may proceed with their claims in this court, they must first exhaust their administrative remedies available through the grievance process within the SCDC.
The Fourth Circuit has recognized that an 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." See Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.2008). Thus, "when prison officials prevent inmates from using the administrative process ..., the process that exists on paper becomes unavailable in reality." Bacon v. Greene, 319 F. App'x 256, 257-58 (4th Cir.2009) (quoting Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.2006)); see also Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001) (stating administrative remedy rendered unavailable when prison officials prevent prisoner from using it).
In Defendants' Motion for Summary Judgment, the Defendants argue that the Plaintiffs' claims are barred because the Plaintiffs failed to exhaust under the PLRA. (Dkt. No. 46 at 5-11.) The Defendants quoted SCDC regulations regarding grievances and provided a website address to publically available SCDC policies in their Motion. (Dkt. No. 46 at 8 n. 4.) The Plaintiffs argue that the Defendants' exhaustion argument fails because none of SCDC's policies are in the record and the website address is unauthenticated hearsay. (Dkt. No. 55 at 11-12.) In their Reply, the Defendants argue that the court may take judicial notice of SCDC's policies and attempt to enter some of the relevant policies into the record. (Dkt. No. 58.)
"The court may judicially notice a fact that is not subject to reasonable dispute because it...can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). The court declines to take judicial notice of SCDC policy because it is inclined to change over time. Indeed, the website cited by the Defendants states that the Inmate Disciplinary System policy has an "issue date" of February 2, 2015, two years after any of the events in this lawsuit. See OP-22.14, "Inmate Disciplinary System," http://www.doc.sc.gov/policy/OP-22-14.htm1532037645479.pdf, (last visited July 20, 2018) The court declines to take judicial notice of the policies on the SCDC website that do not apply to the time period alleged in this case and because they are subject to change at any time.
In attempt to supplement the record, the Defendants included with their Reply a sworn declaration by Sherman L. Anderson, the Chief of the Inmate Grievance Branch, Office of General Counsel for SCDC. (Dkt. No. 58-1.) Mr. Anderson's declaration contains an explanation of the SCDC grievance process along with an attached portion of the actual policy. (Id.) The court first notes that the attached policy was issued May 12, 2014, and explicitly superseded the previous policy. The events in this lawsuit occurred in the summer of 2013. On its face, the policy produced by the Defendants does not apply to this case.
Not only does the policy produced by the Defendants not apply to the dates of this case, it also omits a significant portion of SCDC policy applicable to this case. The policy submitted with the Reply is entitled the "Inmate Grievance System" and contains policies 1 through 13.10. (Dkt. No. 58-1 at 4-13.) However, in the table of contents of the submitted policy, policy 15 is titled "Grievances Alleging Criminal Activity." (Dkt. No. 58-1 at 5.) In the Plaintiffs' Response to the Motion, the Plaintiffs argue that policy 15.2.2, which is nowhere in the record before the court, applies to this case. (Dkt. No. 55 at 17.) Despite the fact that the Plaintiff specifically argued that policy 15 applied to this case and the obvious fact that the Plaintiff's grievances filed August 8, 2013, alleged criminal activity, the Defendants have failed to include policy 15 with their Reply.
The Defendants have failed to show that the Plaintiffs did not comply with the PLRA as to their initial grievances relating to Defendant Welch's conduct. The Defendants have failed to produce the SCDC policies regarding grievances applicable to 2013. Additionally, the Defendants have failed to produce the SCDC grievance policy that governs complaints of alleged criminal activity, such as sexual assault. The court is unable to determine if the Plaintiffs exhausted their administrative remedies under the PLRA because there are no policies in the record that are relevant to the time period of this lawsuit or that apply to allegations of criminal conduct. Therefore, the undersigned concludes that a genuine issue of material fact exists as to whether the Plaintiffs exhausted their administrative remedies under the PLRA.
Preclusion under Heck v. Humphrey
The Plaintiffs' claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997). See Kerr v. Orellana, 969 F.Supp. 357 (E.D.Va. 1997) (holding that prisoner's § 1983 claim for monetary damages and injunctive relief related to his disciplinary hearing was precluded under Heck). In Heck v. Humphrey, the Supreme Court of the United States held that for a plaintiff to recover damages on the basis of an allegedly unconstitutional conviction or imprisonment, the plaintiff must first have the conviction or sentence "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-87. In Edwards v. Balisok, the Supreme Court applied the holding from Heck to prison disciplinary proceedings, precluding § 1983 claims where a prison disciplinary procedure resulted in the denial of good time credits. Edwards, 520 U.S. at 645-48.
The Supreme Court has held that Edwards is not a complete bar on § 1983 claims when a prison disciplinary hearing result stands. In Muhammad v. Close, 540 U.S. 749 (2004), Mr. Muhammad brought a § 1983 suit alleging that a prison official over-charged him with "threatening behavior" following an altercation, which subjected him to mandatory lock-up prior to his hearing, in retaliation for filing prior grievances and complaints against him. 540 U.S. at 752-53. After a disciplinary hearing, Muhammad was found guilty of insolence, a misdemeanor, which did not require him to be locked up prior to the disciplinary hearing. Id. at 752. The Supreme Court overturned the Sixth Circuit, which had barred Muhammad's claims by applying Heck to all suits challenging prisoner disciplinary proceedings. Id. at 754. The Supreme Court ruled that Heck did not bar the Muhammad's claim because his claim did not challenge his ultimate conviction for the lesser charge, insolence, or the state's calculation of his time served. Id. at 754-55. Rather, his claim was that the prison official retaliated against the plaintiff when he charged him with a greater offense that required mandatory pre-hearing detention. Id. at 755. In summation, the Supreme Court held that the Plaintiff's § 1983 claim was not barred by Heck because successful prosecution of Muhammad's claim would not call into question his conviction for insolence and the resulting loss of good time credit.
A court in this district has held that Muhammad applied to a § 1983 Eighth Amendment claim when applicable. In Anderson v. Eagleton, No. 4:16-cv-02462-JMC, 2017 WL 4160971, (D.S.C. Sept. 20, 2017), the district court held that the plaintiff's § 1983 claim for excessive force against prison guards was not barred by Heck. The plaintiff in Anderson alleged that prison guards had caused him bodily injury and sprayed him with chemical munitions while he was being held down in violation of the Eighth Amendment. Id. at *1. The plaintiff additionally alleged that a prison guard had sprayed him in the face with chemical munitions to punish him for refusing to follow a verbal order. Id. at 5. The Plaintiff alleged that this use of chemical munitions occurred prior to the plaintiff assaulting the guards. Id. The Plaintiff was subsequently convicted of assault and/or battery of an SCDC employee as a result of the altercation with the prison guards. Id. at 4. The court held that the Plaintiff's claims were not barred by Heck because the plaintiff's claims "would not necessarily imply the invalidity of his disciplinary conviction of assault and/or battery." Id.
In contrast to Anderson, the Plaintiffs' claims would necessarily imply the invalidity of their disciplinary convictions. The Plaintiffs' Eighth Amendment claims are founded on their allegations that Defendant Welch sexually assaulted them at GCI. The disciplinary charges against the Plaintiffs were for lying when the Plaintiffs reported the alleged sexual assaults. (Dkt. No. 46-9; 49-10.) Both of the Plaintiffs administratively resolved their disciplinary charges by accepting the sanctions offered by SCDC, which included the loss of good time credit. (Id.) The Plaintiffs waived the "privilege" of a disciplinary hearing and agreed to waive any appeals of their sanctions. (Id.) The fact that both Plaintiffs were found guilty of "831 Lying to an Employee or Knowingly Making False Statements" and sanctioned as a result is not in dispute.
If the Plaintiffs § 1983 claims were successfully prosecuted in this case, the result would necessarily imply that their disciplinary convictions are invalid. If either Plaintiff proved in federal court that Defendant Welch sexually assaulted her, the result would directly conflict with her disciplinary conviction for lying about the same assaults. The Plaintiffs' claims fall squarely within the type of claims barred by Heck.
A sister court in the Western District of North Carolina summarily dismissed a plaintiff's case on similar grounds, and the dismissal was upheld by the Fourth Circuit. Moore v. Crow, No. 5:14-cv-15-FDW, 2014 WL 2573036 (W.D.N.C. June 9, 2014), aff'd, 585 F. App'x 268 (4th Cir. 2014). Mr. Moore, a state prisoner, alleged that a food service worker sexually assaulted him by backing up into his hand, smiling at him, and asking if he was alright. Id. at 1. Mr. Moore alleged that he filed grievances, which were all denied, after the incident. Id. Mr. Moore was subsequently charged with making false allegations against the food service worker and found guilty of "making a false allegation against a prison staff member that could expose the staff member to criminal liability." Id. The Moore court held that his claim was barred by Heck because a "finding in this § 1983 action that [the food service worker] violated the Plaintiff's Eighth Amendment rights would invalidate the guilty finding against the Plaintiff in the prison disciplinary proceeding." Id. at 3. Mr. Moore appealed the dismissal of his claim, and the Fourth Circuit affirmed the district court in a per curiam opinion. Moore v. Crow, 585 F. App'x 268 (4th Cir. 2014). The undersigned concludes that the Plaintiffs' § 1983 claims alleging violation of the Eighth Amendment are barred by Heck.
The court recognizes that the allegations in the case at bar are far more extensive and grave than Mr. Moore's claim. However, the court does not find this factual distinction to be a basis for legal distinction.
The undersigned is disturbed by the harsh result that the law imposes in this case but is bound to apply the law as it stands. Without question, a genuine issue of material fact exists as to whether the Plaintiffs' substantive allegations against Defendant Welch are true. The Plaintiffs accepted the disciplinary sanctions without counsel and with the knowledge that the "judge" and "jury" at their disciplinary hearing would be a prison official who worked for the same prison system as the person they accused of sexual assault and who had interviewed them on the day they reported Welch's alleged conduct. If the Plaintiffs had chosen to proceed with their disciplinary proceedings and appeals, they would have been exposed to further sanctions and potentially still been barred from ever bringing suit if the result stood. Plaintiff Arnold testified in her deposition that she accepted the sanctions against her because "I felt like I had no choice....They were already saying I was lying." (Dkt. No. 55-1 at 20.) Plaintiff Yarborough felt like she had no choice because the only result of defending herself against the disciplinary charge was further sanctions. (Dkt. No. 55-4 at 12.) What the law requires in this case is that the Plaintiffs are denied their day in court on serious and otherwise viable sexual assault claims because of the results of a prison disciplinary proceeding. Justice Potter Stewart said, "Fairness is what justice really is." United States v. Davis, 39 M.J. 281, 283 (C.M.A. 1994) (quoting D. Shrager and E. Frost, The Quotable Lawyer § 71.68 at 158 (1986)). Justice Stewart's words are proven in this case as the result is neither fair nor just.
CONCLUSION
Wherefore, it is RECOMMENDED that the Defendants' Motion for Summary Judgment (Dkt. No. 46) be GRANTED.
IT IS SO RECOMMENDED. July 23, 2018 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).