Opinion
C/A 9:23-cv-04168-SAL-MHC
01-13-2025
Kentrell Lamar Gash, Plaintiff, v. Ass. Warden Thomas, Cpt. Gregg, Cpt. McPhaton, Lt. Bostic, Lt. Al-Saadiq, Lt. Livisty, C.O. Cooper, Dr. Ohdoe, Abriell Conyers, C.O. Bonds, Lt. Jermaine Moore, Nurse Jenkins, Sgt. Sweetaburgh, & Dr. Wood, Defendants.
REPORT & RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff, proceeding pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. ECF No. 67. Before the Court is a Motion for Summary Judgment (“Motion”) filed by Ass. Warden Thomas, Cpt. Gregg, Cpt. McPhaton, Lt. Bostic, Lt. Al-Saadiq, Lt. Livisty, Sgt. Sweetaburgh, C.O. Cooper, Dr. Wood, Dr. Ohdoe, Abriell Conyers, C.O. Bonds, and Lt. Jermaine Moore (collectively, “Defendants”). ECF No. 82. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to the Motion, ECF No. 84, Plaintiff filed a Response in Opposition, ECF No. 86, as well as additional attachments to support his Response, ECF Nos. 89; 93. The Motion is ripe for review.
Defendant Nurse Jenkins was served on December 21, 2023, ECF No. 26, but has not filed an answer or otherwise made an appearance in the action.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2) (D.S.C.). This Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends that the Motion be granted, in part, and denied, in part.
Plaintiff has not submitted any affidavit, declaration, or other testimony to the Court. Instead, Plaintiff referenced videos as evidence of the incidents giving rise to the claims in this case. See ECF Nos. 86 at 4 (“It's all on camera”); 89 at 9 (“The video footage shows the gang members assaulting me.”). Defendants have provided the video footage referenced by Plaintiff to the Court. ECF Nos. 96, 99. Where necessary for the context of Plaintiff's claims, the undersigned refers to the allegations in Plaintiff's Amended Complaint throughout the Background. Regarding the videos and other evidence before the Court, the facts are construed in the light most favorable to Plaintiff, as the non-moving party on Defendants' Motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Plaintiff is an inmate currently incarcerated within the South Carolina Department of Corrections (“SCDC”) and, at all relevant times, he was housed at Lee Correctional Institution (“LCI”). See ECF No. 67 at 13-22. Plaintiff filed this civil rights action on August 21, 2023. ECF No. 1. Plaintiff filed his Amended Complaint on April 3, 2024. ECF No. 67.
Plaintiff's slander claim mentions Perry Correctional Institution because Plaintiff was housed there when he received the incident reports at issue. See ECF No. 67 at 21. However, the reports were made on the date of the incident, which occurred at Lee Correctional Institution.
Plaintiff's claims stem from alleged wrongs he suffered at LCI. Id. at 10-11, 13-22. He is suing fourteen employees of SCDC. Id. at 3-8. Plaintiff alleges (1) deliberate indifference to his medical and mental health needs; (2) failure to ensure his safety, including failure to place him in protective custody and failure to protect him from violence by other inmates; (3) violation of his First Amendment right of access to the courts; and (4) harassment, retaliation, and slander. Id. at 10-11, 13-22.
I. Defendants
The following eight Defendants are being sued in their individual and official capacities. Id. at 3-8. Defendant Thomas is an Associate Warden at LCI. Id. at 3. Defendants Gregg and McPhaton are Captains with SCDC. Id. at 4. Defendants Bostic and Al-Saadiq are “Dorm FS L[ieutenants]” at LCI. Id. at 4-5. Defendant Wood is a “psych doctor” at LCI. Id. at 6. Defendant Ohdoe is a nurse practitioner at LCI. Id. Defendant Conyers' title is unknown to Plaintiff. Id. at 7.
The remaining six Defendants are being sued only in their individual capacities. Id. at 58. Plaintiff identifies Defendant Livisty as the “East Yard L[ieutenant].” Id. at 5. Defendant Sweetaburgh is the Restricted Housing Unit (“RHU”) Sergeant. Id. Defendant Cooper is a corrections officer. Id. at 6. Plaintiff identifies Defendant Bonds as a trainee and Defendant Moore as a lieutenant. Id. at 7. Finally, Plaintiff identifies Defendant Jenkins as a nurse at LCI. Id. at 8.
II. Plaintiff's Safety
Plaintiff claims that Defendants Thomas, Gregg, Al-Saadiq, Bostic, Sweetaburgh, and Cooper's “deliberate indifference to the Plaintiff's security, protection, and wellbeing violated the Plaintiff's rights and constituted cruel and unusual punishment under the Eighth Amendment of the United States Constitution.” Id. at 10.
According to Plaintiff, in December 2022, he told Defendant Al-Saadiq on several occasions that he was being harassed, threatened, and extorted by an inmate. Id. at 13. Plaintiff also claims that Defendant Al-Saadiq harassed Plaintiff by making gang members intimidate and threaten him, including an incident on March 16, 2023, where Defendant “Al-Saadiq made gang members approach [Plaintiff], intimidating [him] for sex and control over [him].” Id. at 13, 16. Further, Plaintiff alleges that Defendant Al-Saadiq would not complete any paperwork to separate Plaintiff from violent inmates when requested by Plaintiff. Id. at 13.
On March 27, 2023, Plaintiff claims that he told Defendant Sweetaburgh that he needed to go on protective custody because LCI correctional officers were making gang members and other inmates harass and threaten him. Id. at 17. According to Plaintiff, Defendant Sweetaburgh first placed him in a holding cell with a violent general population inmate who had a knife, and then placed him in a different cell against his will. Id.
Plaintiff also alleges that between March 27, 2023, and May 10, 2023, he was feeling threatened and informed Defendants Thomas and Gregg that “he needed to go on protective custody (or someone was going to get hurt) because correctional officers were making gang members and other inmates harass and threaten Plaintiff.” Id. Plaintiff alleges that Defendant Thomas did not want to hear his complaint, would not provide information so that Plaintiff could spell the officers' names correctly on Prison Rape Elimination Act (“PREA”) statements, and would not allow Plaintiff to write a PREA statement on Defendant Bonds. Id. Plaintiff alleges that Defendant Gregg told him there was no room on lock up. Id.
Plaintiff was involved in an altercation with Defendant Bostic on May 11, 2023, id. at 19, and Defendants produced video footage from that date. ECF No. 99. In the footage, Plaintiff can be seen in his pod receiving what appears to be medication from Defendant Jenkins. Id. at Video 1 Assault in F5-B pod (“Video 1”), 12:21. Defendant Bostic, who accompanied Defendant Jenkins into the pod, can be seen talking with Plaintiff. Id. at 12:16-58; see also id. at Video 2 Angle 3 Assault (“Video 2”), 12:16-13:02. As Defendant Jenkins concludes her rounds, and she and Defendant Bostic prepare to leave the pod, Plaintiff can be seen speaking aggressively to Defendant Bostic and eventually begins to hit and kick her until she is on the ground. See id. at Video 1, 13:43-55. Defendant Bostic quickly gets back on her feet and collects her belongings, and she appears to radio for help. Id. at 13:55-14:09. Defendant Jenkins can be seen leaving the pod as the assault occurs. Id. at Video 2, 13:45-51. After getting up, Defendant Bostic remains in the area, and approximately seven other inmates gradually enter the pod, where they initially talk to Plaintiff but eventually physically assault him. Id. at 14:06-15:19; see also id. at Video 1, 14:0915:13 (another angle of assault). Defendant Bostic can be seen watching the attack and allowing the inmates to continue to enter the pod to confront Plaintiff. Id. at Video 1, 14:11-49; id. at Video 2, 14:17-55. An unidentified officer enters the pod to blow a spray that appears to break up the fight, and the inmates leave the pod. Id. at Video 2, 14:56-15:29.
Plaintiff alleges that Defendants Bostic and Moore lied about this assault in their incident reports. ECF No. 67 at 20-22. Specifically, Plaintiff claims Defendant Bostic lied about what was said during the assault and about the “gang members she made assault [him] for retaliation.” Id. at 21; see also ECF No. 89-1 at 40 (Defendant Bostic's incident report). Plaintiff also alleges that the other incident reports that he received on May 22, 2023, from Defendants Jenkins and Moore do not match Defendant Bostic's incident report or each other's; Plaintiff claims Defendant Moore lied about the presence of gang members and what really happened. ECF No. 67 at 20-22; see also ECF No. 89-1 at 37-39 (incident reports of Defendants Jenkins and Moore).
III. Plaintiff's Medical & Mental Health Needs
A. Care by Non-Medical Professionals
According to Plaintiff, in December 2022, he was assaulted by another inmate and was injured, receiving a busted lip. ECF Nos. 67 at 13; 89-1 at 17-18. Plaintiff alleges that Defendant Al-Saadiq refused to allow him to receive medical attention for over a week. ECF Nos. 67 at 13; 89 at 1-2. According to Plaintiff, Defendant Al-Saadiq “started passing out medication so [he] wouldn't be able to show the nurse [his] infected lip and receive medical attention.” ECF No. 67 at 13.
Additionally, Plaintiff claims he informed Defendant Bostic that he needed a mat to sleep on because, due to a gunshot wound in his back, the metal cot caused him pain. ECF Nos. 67 at 17, 20; 89-1 at 11. Plaintiff alleges that Defendant Bostic would not give him a mat to sleep on and that he wrote several medical requests and told Defendant Bostic that he required medical attention for the back pain, but that Defendant Bostic would not let him go to medical. ECF No. 67 at 17, 20. Plaintiff also alleges that Defendant Bostic “made inmates give [him] dirty food trays” with bodily fluids on them, and that when he confronted Defendant Bostic about the food trays, she “said she knew and that's how she wanted it.” Id. at 18.
Further, Plaintiff alleges that Defendant Sweetaburgh took Plaintiff's New Balance tennis shoes, even though Plaintiff informed him that he had a medical pass to have those shoes. Id. at 19. Plaintiff asserts that Defendant Sweetaburgh made Plaintiff walk around RHU and over sharp rocks and glass without shoes, in “deliberate indifference to the Plaintiff's medical needs[.]” Id. at 10, 19.
According to Plaintiff, he begged Defendant Bostic to allow him to see mental health “so [he] could straighten out [his] medication dosage and mental health level,” but Defendant Bostic would not let him. Id. at 20.
B. Care by Medical Professionals
Plaintiff describes a history of mental illness, including that he “sees people who aren't there and the people tell [him] to kill [him]self so they can take over [his] body” and suffers from personality disorder and paranoid schizophrenia. ECF Nos. 67 at 13; 89-1 at 20. Plaintiff explains that his medication helps lessen his symptoms, but that he needs to have snack, or calories, with his medication for it to work. ECF No. 89 at 2.
Plaintiff alleges that Defendant Wood knew of his mental health difficulties but lowered his antipsychotic medications, specifically his Geodon, on January 1, 2023. ECF No. 67 at 13. Plaintiff acknowledges that Defendant Wood did so because Plaintiff did not attend visits and was unable to consult with physicians regarding his treatment, but he asserts that Defendant Wood should have known that as a mental health patient, Plaintiff might encounter such difficulties. Id.; ECF No. 89 at 2. Plaintiff also claims Defendant Wood changed Plaintiff's mental health level from three to four, so that correction officers “could charge [Plaintiff] and mental health would not have to assess [him] or show [Plaintiff] any paperwork.” ECF No. 67 at 13.
Next, Plaintiff asserts that Defendant Ohdoe's refusal to return Plaintiff to his previous Geodon dosage after it was changed by Defendant Wood was deliberately indifferent to Plaintiff's mental health needs. Id. at 10, 15-16. On February 28, 2023, Plaintiff claims he informed Defendant Ohdoe of his dangerous personality disorder and paranoid schizophrenia and that he requested his mental health level to be changed back to three, his medicine to be increased in dosage, and for food to be provided with his medication. Id. at 15. Plaintiff states that Defendant Ohdoe increased his Geodon dosage, but not back to the proper amount, and that Defendant Ohdoe did not change Plaintiff's mental health level or ensure Plaintiff was provided snack with his medicine, which Plaintiff claims is what led him to snap and attack Defendant Bostic. Id. at 1516.
IV. Plaintiff's Prison Conditions
Between January 1, 2023, and January 16, 2023, Plaintiff claims Defendant Bonds tried to engage him in sexual activity and made comments and actions that were suggestive. See id. at 14 (“I was going to lunch on one occasion and C.O. Bonds approached me saying ‘what[']s up with that D' meaning penuse [sic].”). Plaintiff asserts that Defendant Bonds falsely accused him of assault on January 16, 2023. Id. Plaintiff claims he was falsely charged with striking Defendant Bonds, which resulted in his confinement without an opportunity to be heard, and alleges that Defendants McPhaton, Livisty, and Bonds left him locked in his cell for two weeks as punishment for this false charge, without any paperwork, while all the other inmates got to leave their cells. Id. at 14-16. Plaintiff states that Defendant McPhaton was the supervisor who signed off on sanctions against Plaintiff for striking Defendant Bonds. Id. at 15; ECF No. 89 at 3. Plaintiff also asserts that on January 30, 2023, he was moved to lock up, or RHU, without charge papers or an opportunity to attend his disciplinary hearing. ECF Nos. 67 at 15; 89-1 at 29 (Disciplinary Report and Hearing Record from January 16, 2023, that notes “the above inmate was not escorted to his hearing” based on security concerns).
Around the same time that Defendant Bostic refused to provide him a sleep mat and allowed other inmates to provide him dirty food trays, Plaintiff alleges that Defendant Conyers gave him “phone restrictions, canteen restriction, [and] 60-day DD time” without any paperwork or providing Plaintiff a chance to defend himself at a disciplinary hearing. ECF Nos. 67 at 18; 891 at 36 (privilege restriction summary demonstrating that Plaintiff was put on canteen, television, and telephone restrictions on January 30, 2023, in addition to disciplinary detention until March 16, 2023).
Finally, Plaintiff claims Defendant Bostic did not allow Plaintiff to send and receive mail. ECF No. 67 at 11. Plaintiff alleges Defendant Bostic stated that she would throw his mail in the toilet and would not let Plaintiff use the mail system from April 8, 2023, to May 11, 2023. Id. at 18. Plaintiff states he received legal mail while at LCI that he was unable to retrieve until he was later transferred to Perry Correctional Institution. Id.; ECF No. 89-1 at 23 (legal mail with timestamp showing initially received April 27, 2023, at LCI, but still not picked up by Plaintiff, as it was later received on May 19, 2023, at Perry Correctional Institution).
LEGAL STANDARD
Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 82. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson, 477 U.S. at 255. However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
DISCUSSION
Pursuant to 42 U.S.C. § 1983, Plaintiff brings claims against Defendants for (1) deliberate indifference to his medical and mental health needs; (2) failure to ensure his safety; (3) interference with his First Amendment right to access his mail; and (4) harassment, retaliation, and slander. ECF No. 67 at 13-22. Plaintiff seeks damages and injunctive relief. Id. at 23-24. Defendants argue that they are entitled to summary judgment because Plaintiff has not provided evidence to support his claims and cannot meet his burden of proof. ECF No. 82-1 at 2.
To establish a claim under 42 U.S.C. § 1983, Plaintiff must demonstrate that Defendants, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001). At the summary judgment stage, Plaintiff must show Defendants' personal involvement for liability to attach. Williamson, 912 F.3d at 171-72 (noting a plaintiff must affirmatively show that the official acted personally in violating the plaintiff's constitutional rights and finding certain defendants were entitled to summary judgment because “they lacked sufficient personal involvement in the alleged constitutional deprivations”); Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting liability will lie in § 1983 actions only where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (citation omitted)).
For the reasons set forth below, the undersigned recommends that Defendants' Motion be granted, in part, and denied, in part.
I. Deliberate Indifference
Plaintiff claims that Defendants were deliberately indifferent to his medical and mental health needs. ECF No. 67 at 10-11.
Plaintiff's claim that Defendants failed to provide him adequate medical care is an allegation that his Eighth Amendment rights were violated. Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (“[T]he Eighth Amendment imposes a duty on prison officials to ‘provide humane conditions of confinement . . . [and] ensure that inmates receive adequate food, clothing, shelter, and medical care.'” (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). To sustain his constitutional claim under 42 U.S.C. § 1983, Plaintiff must make (1) a subjective showing that Defendants were deliberately indifferent to his medical needs and (2) an objective showing that those needs were serious. Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (noting a “plaintiff must demonstrate that the officers acted with ‘deliberate indifference' (subjective) to the inmate's ‘serious medical needs' (objective)”); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (to state an Eighth Amendment claim, “a prisoner must allege acts or omissions sufficiently harmful to evidence [1] deliberate indifference to [2] serious medical needs” (emphasis added)).
The subjective prong of deliberate indifference is a “very high standard” and merely negligent behaviors do not meet the subjective mens rea requirement. Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). The Fourth Circuit has recognized two different aspects of an official's state of mind that must be shown to satisfy the subjective prong in this context: “First, actual knowledge of the risk of harm to the inmate is required” and, second, “the officer must also have recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Iko, 535 F.3d at 241 (internal quotation marks and citations omitted); see also Farmer, 511 U.S. at 837 (“[A] prison official cannot be found liable for denying an inmate humane conditions of confinement unless the official 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.”).
As to the objective prong, a “serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (internal quotation marks omitted) (quoting Iko, 535 F.3d at 241).
Defendants argue that Plaintiff has failed to produce any evidence to support his claims for deliberate indifference to his medical or mental health needs such that they are entitled to summary judgment as a matter of law. ECF No. 82-1 at 9, 12, 14, 16, 21-22.
A. Claims against Non-Medical Professionals
Defendants Al-Saadiq, Bostic, and Sweetaburgh are not medical professionals. ECF No. 67 at 4-5; 82-1 at 8-9, 11-12, 20-22. Non-medical prison employees “can be found to have acted with deliberate indifference by ‘intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.'” Krug v. Loranth, No. 1:13-CV-01409-DCN, 2014 WL 4955365, at *7 (D.S.C. Sept. 29, 2014) (quoting Estelle, 429 U.S. at 10405), aff'd, 599 Fed.Appx. 512 (4th Cir. 2015). “To bring a constitutional claim against non-medical prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with a prison doctor's treatment, or tacitly authorized or were indifferent to the prison physician's misconduct.” Id. Furthermore, non-medical professionals are generally entitled to rely on the medical expertise of medical providers. See Iko, 535 F.3d at 241 (“If a prisoner is under the care of medical experts . . ., a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.” (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004))).
Plaintiff alleges various instances where Defendants were deliberately indifferent to his medical and mental health issues. However, none of these Defendants are medical professionals, and Plaintiff has not shown that any of them “were personally involved with a denial of treatment, deliberately interfered with a prison doctor's treatment, or tacitly authorized or were indifferent to the prison physician's misconduct.” See Krug, 2014 WL 4955365, at *7. For these reasons, as set forth in more detail below, these Defendants are entitled to summary judgment on any claim for deliberate indifference to a serious medical need.
1. Plaintiff's Lip
First, Plaintiff alleges that Defendant Al-Saadiq refused to allow him to seek medical attention for his lip after he was involved in an altercation with another inmate in December of 2022, and that he had to beg others for several days before being allowed to get medical treatment. ECF No. 67 at 13. Assuming for purposes of Defendants' Motion that the injury to Plaintiff's lip satisfies the objective prong of a deliberate indifference claim, Plaintiff cannot satisfy the second, subjective prong of this claim. The evidence before the Court indicates that Plaintiff received treatment for a laceration to his lip in December of 2022, see ECF No. 89-1 at 17-18. Even if there was a delay in receiving medical attention for his lip, as Plaintiff alleges, he has not shown any risk of harm from any such delay. Moreover, Plaintiff has not provided any evidence, other than his own conclusory allegations, that Defendant Al-Saadiq somehow “recognized that [her] actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” See Iko, 535 F.3d at 241. Plaintiff's conclusory allegations are insufficient to survive a motion for summary judgment. See Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion). Under these circumstances, Defendant Al-Saadiq is entitled to summary judgment on this claim.
2. Sleep Mat
Next, Plaintiff asserts that Defendant Bostic was deliberately indifferent to his medical needs based on her failure to provide him a sleep mat or allow him to see medical staff for his pain from sleeping without the mat. ECF No. 67 at 19-20. Plaintiff has not provided any evidence of a serious medical need pertaining to his sleep or pain from sleeping without a mat.
Moreover, though Plaintiff has provided medical documents indicating that he informed other medical professionals of the pain from sleeping on the metal cot, see ECF No. 89-1 at 11, he has not submitted any evidence of Defendant Bostic's denial of medical care. Indeed, the medical records show Plaintiff saw a medical professional and raised his concerns about sleeping on a metal cot. See id. Under these circumstances, Plaintiff cannot establish a claim for deliberate indifference to his medical needs, and Defendant Bostic is entitled to summary judgment on this claim. See Iko, 535 F.3d at 241.
3. Medical Tennis Shoes
Plaintiff also alleges that Defendant Sweetaburgh was indifferent to his medical needs based on his confiscation of Plaintiff's medical tennis shoes. ECF No. 67 at 19. Plaintiff has failed to provide any evidence to the Court to support the objective or subjective element of the two-part test that must be met to establish a claim for deliberate indifference to a medical need, such that Defendant Sweetaburgh is entitled to summary judgment on this claim against him. See Iko, 535 F.3d at 241.
4. Denial of Requests for Mental Health Care
Finally, Plaintiff asserts that Defendant Bostic was indifferent to his mental health needs. ECF No. 67 at 10. Specifically, Plaintiff alleges that Defendant Bostic refused to allow Plaintiff to seek mental health care when Plaintiff asked. Id. at 18.
However, Plaintiff has not produced or pointed to any evidence to support this allegation. His conclusory accusations against Defendant Bostic are insufficient to support his claim for deliberate indifference against her. See Anderson, 477 U.S. at 249 (noting that, in the face of a properly supported motion for summary judgment, a plaintiff cannot rest on his allegations to get to a jury without “any significant probative evidence tending to support the complaint”). Defendant Bostic is entitled to summary judgment on this claim.
For the reasons set forth above, the undersigned recommends that Defendants' Motion be granted as to Plaintiff's claims for deliberate indifference to his medical and mental health needs against Defendants Al-Saadiq, Bostic, and Sweetaburgh.
B. Claims against Medical Professionals
Plaintiff also brings claims for deliberate indifference to his medical and mental health needs against Defendants Wood and Ohdoe. ECF No. 67 at 10-11. Defendants Wood and Ohdoe are medical professionals. ECF Nos. 67 at 6; 82-1 at 13-15.
1. Medication Dosage
Plaintiff disagrees with how Defendants Wood and Ohdoe handled his dosage of Geodon, an antipsychotic medication, and their refusal to raise his mental health level. ECF No. 67 at 1316. Plaintiff alleges that Defendant Wood's lowering of Plaintiff's Geodon dosage and Defendant Ohdoe's only raising the dosage back slightly, but not to the previous dosage of 80 milligrams constituted deliberate indifference to Plaintiff's mental health needs. Id. Additionally, Plaintiff indicates that the two Defendants' lowering of Plaintiff's mental health level to a level three was also deliberately indifferent to his needs. Id. Plaintiff provides no evidence to support his allegations.
Although a prisoner is entitled to reasonable medical care, he cannot determine questions of medical judgment. Feazell v. Augusta Cnty. Jail, 401 F.Supp. 405, 407 (W.D. Va. 1975) (citing Blanks v. Cunningham, 409 F.2d 220, 221 (4th Cir. 1969)). Here, Plaintiff appears to be dissatisfied with his medication levels. However, his dosage is a question of medical judgment, and the documents Plaintiff provided to the Court indicate there was a reasonable basis for such decisions. See ECF No. 89-1 at 20 (report from day of Plaintiff's visit with Defendant Ohdoe that indicates that Plaintiff “misses clinic [and thus] misses opportunities to talk with [Defendant Ohdoe] about his medication” and also that Plaintiff's “symptom report appears questionable”). At best, Plaintiff's claims as to his Geodon dosage and mental health level demonstrate a disagreement over the proper course of his medical care, which falls short of showing deliberate indifference. See Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (noting that the Fourth Circuit has consistently found disagreements between an inmate and a physician over the inmate's proper medical care “fall short of showing deliberate indifference”); Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (holding that “[d]isagreements between an inmate and a physician over the inmate's proper medical care” are not sufficient to raise an Eighth Amendment claim for purposes of 42 U.S.C. § 1983 and ultimately affirming the order of summary judgment in favor of the doctor).
Plaintiff has not provided any evidence that the dosage adjustments harmed him or presented a substantial risk of harm to his mental health. Plaintiff asserts that these dosage adjustments led to his attack of Defendant Bostic, but there is no evidence before the Court to substantiate this assertion. Plaintiff points to the change in dosage as though the change itself is sufficient to sustain a violation of the Constitution. It is not.
Plaintiff alludes to the dosage adjustment leading to other, non-health related constitutional deprivations. See ECF No. 67 at 13, 15-16 (Plaintiff alleging he was charged without notice or hearing due to the changed mental health level). However, there is no evidence to support these allegations or to connect the separate and distinct events.
Plaintiff has not met his burden of showing a genuine issue for trial. See Anderson, 477 U.S. at 248 (noting “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial” (citation and internal quotation marks omitted)); see also Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993) (“The mere incantation of ‘physical and mental injury,' of course, is inadequate to survive a motion for summary judgment. At a minimum, an inmate must specifically describe not only the injury but also its relation to the allegedly unconstitutional condition.”).
2. Snack with Medication
Plaintiff also appears to allege that Defendant Ohdoe was deliberately indifferent to Plaintiff's medical needs based on Defendant Ohdoe's failure to ensure a snack was provided with Plaintiff's medication. See ECF No. 67 at 10-11, 15-16, 19. Plaintiff has failed to provide any evidence to support either element of his claim, such that Defendant Ohdoe is entitled to summary judgment on this claim.
For the reasons set forth above, the undersigned recommends granting summary judgment to Defendants Wood and Ohdoe as to Plaintiff's claims against them for deliberate indifference to his medical and mental health needs.
II. Plaintiff's Safety
Plaintiff alleges that Defendants Thomas, Gregg, Al-Saadiq, Bostic, Sweetaburgh, and Cooper failed to protect him from other inmates, in deliberate indifference to Plaintiff's security, protection, and wellbeing. ECF No. 67 at 10.
A. Protective Custody
Plaintiff requested that Defendants Thomas, Gregg, and Sweetaburgh move him to protective custody, and he bases his claim on these Defendants' failure to do so. Id. at 10, 17.
1. No Protected Liberty Interest
To the extent Plaintiff intends to articulate a claim that he was entitled to protective custody, his claim fails.
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. To establish a procedural due process violation, a plaintiff must (1) identify a protected liberty interest and (2) show deprivation of that interest without due process of law. Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015); see also Slezak v. Evatt, 21 F.3d 590, 593 (4th Cir. 1994) (“To prevail on a § 1983 claim that actions by state officials respecting a state prison inmate's security and custody classification have violated the inmate's procedural due process rights, the claimant must prove that (1) he had a protected liberty interest in receiving a new or retaining a current classification, (2) which interest was adversely affected by the actions, (3) without the protections of due process guaranteed by the Fourteenth Amendment.”).
The Supreme Court has long recognized that a prisoner may have a state-created liberty interest in certain prison confinement conditions, which would entitle him to procedural due process protections. See, e.g., Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Woff v. McDonnell, 418 U.S. 539, 556-57 (1974). However, the Supreme Court has been equally clear that if no state statute, regulation, or policy creates such a liberty interest, a prisoner cannot “invoke the procedural protections of the Due Process Clause.” Meachum, 427 U.S. at 224.
Here, Plaintiff cannot establish that he had a protected liberty interest in being placed in protective custody. Indeed, prisoners generally have no liberty interest in a particular security classification or in being housed in a particular facility, see id. at 224-25, and courts have previously found that no South Carolina law or regulation creates a liberty interest in a particular security or custody classification. See Brown v. Evatt, 470 S.E.2d 848, 851 (S.C. 1996) (“Neither the state statutes which create and define the powers of the SCDC nor SCDC's operational classification regulations create the required liberty interest. Though they provide procedural safeguards and substantive criteria for making base-line classification decisions, these are made only as recommendations that are subject to discretionary review and rejection by higher-level prison officials.”); see also Slezak, 21 F.3d at 595-97 (finding no state-created liberty interest in particular classification decisions within SCDC from state statutes, a federal consent decree, or in the operational regulations within SCDC). As such, Plaintiff cannot establish that Defendants Thomas, Gregg, and Sweetaburgh were deliberately indifferent to his security, protection, and wellbeing based on their alleged failure to place him in protective custody.
The undersigned recommends granting summary judgment to Defendants Thomas, Gregg, and Sweetaburgh on this claim.
2. Failure to Protect
To the extent Plaintiff asserts that the failure to move him to protective custody led Plaintiff to be harmed by other inmates, see ECF No. 67 at 17, Plaintiff's allegations are construed as a failure to protect claim. Defendants assert that “[b]ecause Plaintiff has failed to produce any evidence that could support his claim that [Defendants Thomas, Gregg, and Sweetaburgh] acted with deliberate indifference that constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution, [these] Defendant[s are] entitled to summary judgment as a matter of law.” ECF No. 82-1 at 5-6, 12.
The Eighth Amendment requires prison officials to “protect prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833. Officials must take “reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). In other words, “[t]he government and its officials are not free to let the state of nature take its course.” Farmer, 511 U.S. at 833. Nonetheless, “[t]he burden is on the prisoner to demonstrate that prison officials violated the Eighth Amendment, and that burden is a heavy one.” Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir. 2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)). Not every “injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. Instead, the Supreme Court has articulated two requirements a plaintiff must show to make out an Eighth Amendment failure to protect claim. First, “a prison official's act or omission must result in the denial of ‘the minimal civilized measure of life's necessities.'” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In other words, the denial of the prisoner's constitutional rights must be “sufficiently serious.” Id.; see also Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014) (“[A] prisoner must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury.” (internal quotation marks omitted)). Second, the prison official must have a “sufficiently culpable state of mind,” Farmer, 511 U.S. at 834, which means the official either purposefully caused the harm or acted with “deliberate indifference.” Wilson v. Seiter, 501 U.S. 294, 302-03 (1991).
A prison official demonstrates deliberate indifference if he “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837; Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (observing that “deliberate indifference” requires actual knowledge and disregard of a substantial risk of serious injury). A prison official is not liable if he or she “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 that a prison official was not liable when he did not draw the inference that the inmate was subject to a substantial risk of serious harm). A showing of mere negligence does not qualify as deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347 (1986); see Whitley, 475 U.S. at 319 (“[C]onduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety.... It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.”); see also Moore v. Winebrenner, 927 F.2d 1312, 1316 (4th Cir. 1991) (citing Fourth Circuit cases adopting the Supreme Court's reasoning in Whitley).
Here, Plaintiff alleges that Defendants Thomas, Gregg, and Sweetaburgh failed to protect him from violence by other inmates by their refusal to put him on protective custody. ECF No. 67 at 10, 17. Plaintiff has not alleged, nor shown, that he was denied “the minimal civilized measure of life's necessities.” See Rhodes, 452 U.S. at 347. Nor has he provided any evidence that shows that the three Defendants had a “sufficiently culpable state of mind.” See Farmer, 511 U.S. at 834. Plaintiff's conclusory allegations that he informed Defendants of his desire to be put in protective custody based on fears of inmate violence, without more, cannot substantiate his claims. See Thompson, 312 F.3d at 649.
Under these circumstances, the undersigned recommends granting summary judgment to Defendants Thomas, Gregg, and Sweetaburgh on Plaintiff's failure to protect claim against them.
B. Defendant-Provoked Violence
Plaintiff also brings a claim for failure to protect against Defendants Bostic and Cooper. ECF No. 67 at 10. He asserts that these Defendants not only failed to protect him from inmate violence but also instigated the violence. Id. at 19. Defendants argue that “Plaintiff has failed to produce any evidence that could support his claim that [Defendants Bostic and/or Cooper] acted with . . . deliberate indifference that constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution, [such that] Defendant[s Cooper and Bostic are] entitled to summary judgment as a matter of law.” ECF No. 82-1 at 13, 22.
As set forth above, Plaintiff must demonstrate that (1) the denial of his rights was sufficiently serious, such that he suffered a serious physical or emotional injury; and (2) that the Defendants had a “sufficiently culpable state of mind” because they caused the harm or knew of and disregarded its risk. See Wilson, 501 U.S. at 302-03.
Here, Plaintiff has referenced video evidence of the incident in which he alleges Defendants Bostic and Cooper exercised deliberate indifference to his safety. See ECF No. 89 at 9 (“The video footage shows the gang members assaulting me.”).
1. Defendant Bostic
In the video footage, Plaintiff can be seen first assaulting Defendant Bostic, who then remains on scene while seven inmates assault Plaintiff. ECF No. 99, Video 2, at 13:42-14:57. No other individual is seen on the video footage watching as the inmates attack Plaintiff. Under these circumstances, Plaintiff has pointed to evidence which, when viewed in the light most favorable to him, satisfies the first element of a failure-to-protect claim against Defendant Bostic. The video evidence, as well as medical evidence provided to the Court, shows that Plaintiff suffered physical injury when he was beaten by the other inmates. ECF Nos. 99, Video 2, at 13:42-14:57; 89-1 at 21-22 (medical reports taken after the attack showing Plaintiff had a % inch laceration on the back of his head).
As for the second element regarding an official's mens rea, the video shows Defendant Bostic watching as Plaintiff is attacked letting more inmates enter the pod to join the assault against him. ECF No. 99, Video 2, at 13:42-14:57. Viewing this evidence in the light most favorable to Plaintiff, there is a genuine dispute of material fact regarding whether Defendant Bostic knew of and disregarded an excessive risk to Plaintiff's safety. See Farmer, 511 U.S. at 837.
Under these circumstances, the undersigned recommends denying Defendants' Motion as to Plaintiff's failure-to-protect claim against Defendant Bostic in her individual capacity.
Defendants did not address the issue of Eleventh Amendment immunity for Defendant Bostic as to Plaintiff's official capacity claim against her. The Fourth Circuit has determined that “because of its jurisdictional nature, a court ought to consider the issue of Eleventh Amendment immunity at any time, even sua sponte.” Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997); McCray v. Md. Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014). Here, during the relevant time, Defendant Bostic was an employee of SCDC, a state agency, see ECF No. 67 at 4, and as such, is entitled to Eleventh Amendment immunity when sued in her official capacity in federal court. See Simpson v. S.C. Dep't of Corr., No. 2:19-CV-2245-RMG, 2020 WL 582321, at *2 n.1 (D.S.C. Feb. 6, 2020) (noting SCDC employees are entitled to Eleventh Amendment immunity in suits for monetary damages brought against them in their official capacities). Plaintiff requests only monetary relief against Defendant Bostic, such that Defendant Bostic, as an arm of the state, is immune from his claims. Thus, any claim against Defendant Bostic in her official capacity should be dismissed.
2. Defendant Cooper
There is no evidence before the Court regarding Defendant Cooper. He is not seen on the video footage watching the assault or otherwise, as alleged by Plaintiff. Plaintiff's conclusory allegations alone are insufficient to create a question of material fact. Thompson, 312 F.3d at 649. Plaintiff has not established a genuine dispute of material fact as to Defendant Cooper's involvement, and Plaintiff's claim against him should be dismissed.
The undersigned notes that an unidentified officer is seen in the video entering the pod to blow a spray in an apparent attempt to break up the fight. See ECF No. 99, Video 2, at 14:56-15:29. There is no evidence before the Court that this officer is Defendant Cooper. Moreover, this evidence only depicts the unidentified officer effectively terminating the attack by gang member inmates, which is insufficient to establish that this official knew of and disregarded an excessive risk to Plaintiff's safety. See Farmer, 511 U.S. at 837.
For the foregoing reasons, the undersigned recommends that Defendants' Motion be denied as to Plaintiff's failure to protect claim against Defendant Bostic in her individual capacity and granted as to his claim against Defendant Cooper.
III. First Amendment Claim
Plaintiff claims that Defendant Bostic denied him access to legal mail in violation of his First Amendment rights. ECF No. 67 at 11. Defendants argue that “there is no evidence to support Plaintiff's allegations.” ECF No. 82-1 at 21. Plaintiff's claim regarding his access to legal mail bears upon his constitutional right of access to the courts. Pearson v. Simms, 345 F.Supp.2d 515, 519 (D. Md. 2003) (citing Bounds v. Smith, 430 U.S. 817, 821 (1977), abrogated by Lewis v. Casey, 518 U.S. 343 (1996)), Cff'd, 88 Fed.Appx. 639 (4th Cir. 2004).
The Due Process Clause of the Fourteenth Amendment guarantees state inmates their First Amendment right to “adequate, effective, and meaningful” access to the courts. Bounds, 430 U.S. at 822. To state a constitutional claim for denial of access to the courts, a prisoner must show that the alleged shortcomings “hindered his efforts to pursue a legal claim.” Lewis, 518 U.S. at 351; see also O'Dell v. Netherland, 112 F.3d 773, 776 (4th Cir. 1997) (inmate must demonstrate that inability to gain access to legal materials resulted in “actual injury” to his “capacity of bringing contemplated challenges to sentences or conditions of confinement before the courts”). Moreover, to establish a claim for deprivation of meaningful access to the courts based on the delay or nondelivery of legal mail, a prisoner must show an adverse consequence resulting from that delay or nondelivery. Pearson, 345 F.Supp.2d at 519 (citing White v. White, 886 F.2d 721, 724 (4th Cir. 1989)).
Here, Plaintiff has alleged that Defendant Bostic prevented him from accessing his legal mail, ECF No. 67 at 18, and he has provided evidence that shows that at least one piece of his legal mail was not retrieved for weeks. ECF No. 89-1 at 23 (legal mail showing nearly a month between initial receipt at LCI and later receipt at Perry Correctional Institution). However, Plaintiff has not provided any evidence nor otherwise shown that Defendant Bostic was, in fact, the person responsible for the delay in access to his legal mail. Without evidence of Defendant Bostic's personal involvement, Plaintiff cannot establish a cognizable § 1983 claim for denial of access to the courts based on delay in the delivery of his legal mail. See Williamson, 912 F.3d at 171-72.
Moreover, Plaintiff has failed to allege or show an actual injury based on this delay in access to his legal mail. The delay alone is insufficient to raise a First Amendment claim for denial of access to the courts. See Pearson, 345 F.Supp.2d at 519-20 (granting summary judgment to defendants when plaintiff failed to offer an actual injury or specific harm suffered from the alleged delay or mishandling of his mail); Woolfork v. Chesapeake Mail Clerk, No. 1:09-CV-198-AJT-TCB, 2009 WL 7024994, at *1 (E.D. Va. Apr. 15, 2009) (collecting cases demonstrating that “a relatively isolated or short-term disruption in a prisoner's receipt of his mail, legal or otherwise, does not rise to the level of a constitutional deprivation”), aff'd, 332 Fed.Appx. 71 (4th Cir. 2009); Sizemore v. Williford, 829 F.2d 608, 611 (7th Cir. 1987) (even “persistent” short-term delays in prisoners' receipt of mail do not raise constitutional concerns).
Because Plaintiff has not produced evidence of harm from the delay in delivery of his legal mail, the undersigned recommends that Defendants' Motion be granted as to Plaintiff's First Amendment claim against Defendant Bostic.
IV. Harassment & Retaliation
A. Harassment
Plaintiff brings claims for harassment against Defendants Al-Saadiq, Bostic, Bonds, Livisty, McPhaton, and Conyers. ECF No. 67 at 10. Defendants argue that Plaintiff has failed to produce any evidence that could support his claims for harassment. ECF No. 82-1 at 7-8, 9, 10, 17, 18, 20-22.
1. Inmate Provocation
Plaintiff alleges that Defendant Al-Saadiq harassed him by encouraging other inmates to threaten and intimidate him. ECF No. 67 at 17. It is well established that a mere threat or a general claim of harassment is not a basis for a § 1983 claim. See DePaola v. Taylor, No. 7:10-CV-000398, 2011 WL 2445859, at *9 (W.D. Va. June 15, 2011) (“[A]n institutional employee's verbal harassment of an inmate or idle threats made to an inmate, even if they cause an inmate fear, anxiety or discomfort, do not present a claim of constitutional magnitude.”), report and recommendation adopted, No. 7:10-CV-00398, 2011 WL 3105336 (W.D. Va. July 25, 2011), aff'd, 470 Fed.Appx. 186 (4th Cir. 2012); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (noting that verbal abuse by a prison guard does not give rise to a cause of action under § 1983); Morva v. Johnson, No. 7:09-cv-00515, 2011 WL 3420650, at * 7 (W.D. Va. Aug. 4, 2011) (Plaintiff failed “to establish that a defendant violated a constitutional right by harassing, threatening, or ridiculing him ....”); Ajaj v. United States, 479 F.Supp.2d 501, 538 n.16 (D.S.C. 2007) (“To the extent Plaintiff is . . . complaining about verbal harassment or taunting, even if there was evidence to support such a claim, no constitutional violation has been shown.”). Rather, Plaintiff must show that a Defendant actually engaged in conduct that denied him a constitutional right. “The Fourth Circuit has held that bullying, harassment, or other verbal abuse, without more, is insufficient to state a constitutional deprivation.” Salmeri v. Jones, No. CV 1:21-2504-BHH-SVH, 2022 WL 1037940, at *4 (D.S.C. Mar. 17, 2022) (citing Henslee v. Lewis, 153 Fed.Appx. 178, 180 (4th Cir. 2005) (without claims that inmate was actually attacked, a jail employee's incitement of other inmates to do so is not a cognizable claim)), report and recommendation adopted, No. 1:21-CV-2504-BHH, 2022 WL 1037078 (D.S.C. Apr. 6, 2022). Without any evidence that Plaintiff was denied a constitutional right based on Defendant Al-Saadiq's behavior, his claim fails.
2. Denial of Supplies
To the extent that Plaintiff asserts that Defendant Bostic's failure to provide him his requested supplies was a form of harassment, see ECF No. 67 at 17, he has not produced or pointed to any evidence to substantiate this claim. Without providing “concrete evidence from which a reasonable juror could return a verdict in his favor,” Plaintiff cannot survive summary judgment. See Anderson, 477 U.S. at 256. Defendant Bostic is entitled to summary judgment on Plaintiff's harassment claim against her.
3. Sexual Harassment
Plaintiff alleges that Defendant Bonds sexually harassed him. See ECF No. 67 at 14. However, he has not set forth any evidence in support of this allegation, nor is there any indication of any complaint or grievance made in that regard. Moreover, alleged verbal sexual harassment, although certainly not to be condoned if true, fails to rise to the level of a constitutional violation. Although a prisoner has “a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment.” Jackson v. Holley, 666 Fed.Appx. 242, 244 (4th Cir. 2016) (quoting Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004)). In Jackson, the Fourth Circuit found that the plaintiff's allegations that the defendant sent the plaintiff a “sexually explicit and lurid” letter, posed seductively in front of him, whispered sexually explicit words to him, and planted her groin area in Jackson's face while he was seated for his haircut in the barber's chair, were insufficient to rise to the level of an Eighth Amendment violation. Id. at 244. The Eighth Amendment's protections against cruel and unusual punishment are not understood to extend to mere verbal sexual harassment. See Bishop v. Lambert, No. 7:22-CV-00614, 2023 WL 1466621, at *2-3 (W.D. Va. Feb. 2, 2023) (noting “where an incident of alleged sexual abuse does not involve physical contact, the alleged misconduct must be severe to implicate constitutional protections”).
Under these circumstances, Defendant Bonds is entitled to summary judgment on Plaintiff's claim against her.
4. False Charges
Plaintiff claims that Defendants Bonds, Livisty, and McPhaton falsely charged him with the assault of Defendant Bonds. ECF No. 67 at 14-15. The act of filing false disciplinary charges does not itself violate a prisoner's constitutional rights. See Hunter v. Champagne, No. 8:07-910-CMC-BHH, 2008 WL 382757, at *4 (D.S.C. Feb. 11, 2008); see also Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir. 1986) (holding that “the mere filing of [a false] charge itself does not” constitute a cognizable claim under § 1983 so long as the inmate “was granted a hearing, and had the opportunity to rebut the unfounded or false charges”); Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984) (finding that so long as prison officials provide a prisoner with the proper procedural requirements then the prisoner has not suffered a constitutional violation). However, when coupled with the inability to attend a hearing and rebut those charges, such a claim has merit. Cf. Rhodes v. Sterling, 475 F.Supp.3d 470, 482 (D.S.C. 2020) (finding that “[b]ecause Plaintiff admits he was granted a hearing on the alleged false charges, his ‘due process rights [were] protected.'” (quoting Freeman, 808 F.2d at 951)); Hunter, 2008 WL 382757, at *4 (finding because “the plaintiff does not allege he was denied the procedural requirements” he does not have a constitutional claim based on being falsely charged).
Here, Plaintiff alleges he was denied the ability to attend a hearing and, thus, lacked an opportunity to rebut the false charge of assaulting Defendant Bonds. See ECF No. 67 at 14-15. Plaintiff has submitted evidence to the Court that he was not in attendance at the hearing at issue. See ECF No. 89-1 at 29 (Disciplinary Report and Hearing Record showing that Plaintiff was not in attendance at the hearing on his January 2023 charge). However, there is no evidence before the Court as to why Plaintiff did not attend the hearing. Nor is there evidence before the Court that any of the individual Defendants were personally involved in making a false charge against Plaintiff or with denying him the opportunity to attend a hearing. Notably, the Disciplinary Report and Hearing Record is not signed by any of the three Defendants whom Plaintiff claims falsely charged him with assaulting Defendant Bonds. See ECF No. 89-1 at 29.
Plaintiff must show the personal involvement of these Defendants to survive summary judgment. See Williamson, 912 F.3d at 171-72. Here, Plaintiff has not provided or pointed to evidence to establish the personal involvement of any of these Defendants. Thus, the undersigned recommends that Defendants' Motion be granted as to Plaintiff's claim for harassment against Defendant Bonds, Livisty, and McPhaton based on being falsely charged.
5. Solitary Confinement
Plaintiff also claims that Defendants Bonds, Livisty, and McPhaton harassed him by putting him in solitary confinement for two weeks, without any paperwork, after falsely charging him with the assault of Defendant Bonds. ECF No. 67 at 14.
Inmates' liberty “interests will be generally limited to the freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In other words, where a change in a prisoner's housing assignment or a loss of privileges does not subject him to conditions that are significantly harsher and more different than basic prison conditions contemplated by his sentence, he has no claim for relief under the Due Process Clause or § 1983, even if the change occurred without all the state-created procedural protections. Id.; see also McKune v. Lile, 536 U.S. 24, 39 (2002) (“An essential tool of prison administration, however, is the authority to offer inmates various incentives to behave. The Constitution accords prison officials wide latitude to bestow or revoke these perquisites as they see fit.”).
Courts have found that South Carolina's classification scheme governing prisoners' custody and security does not create a liberty interest in avoiding changes in these classifications, since an inmate's status in these areas is subject to change, based on his own behavior and the discretion of prison officials. See Moore v. Inabinet, No. 5:20-CV-04229-TMC-KDW, 2021 WL 5417660, at *4-5 (D.S.C. Oct. 27, 2021), report and recommendation adopted, No. 5:20-CV-4229-TMC, 2021 WL 5416706 (D.S.C. Nov. 19, 2021); Wiles v. Ozmint, No. 0:05-2111-CMC-BM, 2006 WL 2260136, at *8 (D.S.C. Aug. 7, 2006) (“South Carolina law confers no protected liberty interest upon inmates of the South Carolina Department of Corrections from being placed in administrative segregation or any particular prison.”), aff'd, 221 Fed.Appx. 257 (4th Cir. 2007); Rivera v. Byars, No. 8:12-CV-02219-JMC, 2013 WL 4697177, at *5 (D.S.C. Aug. 30, 2013) (“[T]o the extent Plaintiff argues Defendants have violated SCDC policies or procedures by denying his attendance at meetings to review his classification, assuming without deciding this claim is true, violations of prison policies and/or procedures do not rise to the level of a constitutional violation.”). A state's failure to abide by its own procedural regulations before imposing disciplinary segregation or another less than favorable housing assignment is not a federal due process issue, Riccio v. Cnty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990), and is not actionable under § 1983.
Plaintiff has neither alleged nor shown any actionable constitutional violation from harassment based on solitary confinement, as he has not demonstrated the implication of a liberty interest. Accordingly, Defendants Bonds, Livisty, and McPhaton are entitled to summary judgment on this claim.
6. Restrictions
Plaintiff alleges that Defendant Conyers harassed him by imposing restrictions on his phone and canteen use and imposing sixty days of disciplinary detention. Plaintiff has provided evidence that he did receive restrictions at the direction of Defendant Conyers. ECF Nos. 67 at 18; 89-1 at 36. However, a prisoner's loss of privileges provides no claim for relief under § 1983 when it does not subject him to conditions that are significantly harsher and more different than basic prison conditions contemplated by his sentence. See Sandin, 515 U.S. at 484. Plaintiff has not provided any evidence to the Court that suggests or shows the conditions imposed on him were harsher or different than the previous ones, nor has he shown that the restrictions lacked a legitimate basis for prison administration. See McKune, 536 U.S. at 39. As such, Plaintiff has not demonstrated a question of material fact as to his harassment claim. Accordingly, Defendant Conyers is entitled to summary judgment on this claim.
B. Retaliation
Plaintiff asserts that Defendants Bostic and Cooper took retaliatory acts against him based on his attack of Defendant Bostic. ECF No. 67 at 10, 19. Defendants argue that Plaintiff has failed to produce any evidence to support his claim of retaliation by Defendants Bostic and Cooper such that they are entitled to summary judgment as a matter of law. ECF No. 82-1 at 13, 21-22.
To establish a retaliation claim, a plaintiff must show (1) he engaged in a constitutionally protected activity, (2) the defendant took some action that adversely affected the plaintiff's constitutional right, and (3) there was a causal relationship between his protected activity and the defendant's conduct. Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017); see also Williams v. Mitchell, 682 F.Supp.3d 503, 510 (E.D. Va. 2023) (“To prevail on a § 1983 retaliation claim, an individual must establish: (1) a specific constitutional right; (2) the defendant's intent to retaliate against him for exercising that right; (3) a retaliatory adverse act; and (4) causation.”). “Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights.” ACLU of Md., Inc. v. Wicomico Cnty., 999 F.2d 780, 785 (4th Cir. 1993).
Here, Plaintiff's retaliation claim against Defendants Bostic and Cooper is based solely upon Plaintiff's attack of Defendant Bostic. Plaintiff explains that, due to his personality disorder, he physically attacked Defendant Bostic. ECF No. 67 at 19. According to Plaintiff, this behavior triggered the retaliatory actions of Defendants Bostic and Cooper. Id. at 10, 19. However, the physical assault of an officer is not a constitutionally protected activity or right that can serve as a basis for a claim of retaliation. See Martin, 858 F.3d at 249. Accordingly, Plaintiff cannot establish the first element, and Defendants are entitled to summary judgment on Plaintiff's retaliation claim.
C. Slander
Plaintiff alleges that Defendants Moore and Bostic made slanderous statements against him in violation of his Eighth Amendment rights. ECF No. 67 at 11. Plaintiff alleges that these Defendants lied about the events surrounding Plaintiff's assault of Defendant Bostic in their incident reports, specifically the presence of gang members and their assault of Plaintiff. Id. at 2022. Defendants argue that Plaintiff has failed to produce any evidence that supports a claim for slander against Defendants Moore or Bostic such that they are entitled to summary judgment as a matter of law. ECF No. 82-1 at 19, 21-22.
“Other than state a legal conclusion that his Eighth Amendment rights have been violated through the introduction of allegedly questionable statements by the defendants, Plaintiff has failed to allege facts which could entitle him to relief under Section 1983.” Canady v. Williams, No. 3:13-CV-28-RJC, 2013 WL 1799975, at *1 (W.D. N.C. Apr. 29, 2013); see also Clark v. Link, 855 F.2d 156, 161 (4th Cir. 1988) (A § 1983 action may not be “based alone on a violation of state law or on a state tort.”). Assuming, if only for the sake of argument, that Plaintiff had set forth evidence to support a colorable claim of slander against Defendants, this claim does not constitute a basis upon which relief may be granted under § 1983. See Canady, 2013 WL 1799975, at *1. “A state law claim ‘does not become a constitutional violation merely because the victim is a prisoner.' Thus, Plaintiff's allegations concerning [] purely state law claim[s such as] defamation fail to establish a claim for a violation of a federal right as required under § 1983, and therefore his claim must be dismissed.” Wilson v. Ozmint, No. 3:10-cv-2887-RMG, 2011 WL 1336391, at *1-2 (D.S.C. Apr. 7, 2011) (quoting Estelle, 429 U.S. at 106); see also DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 200-03 (1989) (explaining civil rights statutes, such as § 1983, do not impose liability for violations of duties of care arising under a state's tort law); Woodruff v. Spartanburg City Police Dep't, No. CV 7:18-1920-BHH-JDA, 2018 WL 4017683, at *3-4 (D.S.C. July 30, 2018) (recommending dismissal of claim for defamation under § 1983), report and recommendation adopted, No. CV 7:18-1920-BHH, 2018 WL 4005828 (D.S.C. Aug. 22, 2018).
Here, Plaintiff's slander claim does not implicate the violation of the Eighth Amendment or any other federal right. Defendants are entitled to summary judgment on Plaintiff's slander claim.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion for Summary Judgment, ECF No. 82, be GRANTED, in part, and DENIED, in part.
The undersigned recommends Defendants' Motion be GRANTED as to all claims against Defendants Thomas, Gregg, McPhaton, Al-Saadiq, Livisty, Cooper, Ohdoe, Conyers, Bonds, Moore, Sweetaburgh, and Wood, and that these Defendants be DISMISSED as parties to this action.
The undersigned further recommends that Defendants' Motion be DENIED as to Plaintiff's failure to protect claim against Defendant Bostic in her individual capacity and GRANTED as to all other claims against Defendant Bostic in her individual and official capacities.
The parties are referred to the Notice Page attached hereto.
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).