Opinion
C/A No.: 1:18-2124-BHH-SVH
05-21-2021
Darrell L. Goss, Plaintiff, v. Richard Cothran, Defendant.
REPORT AND RECOMMENDATION
Darrell L. Goss ("Plaintiff"), proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights against Richard Cothran ("Defendant"), Warden of Turbeville Correctional Institution ("TCI"), in his individual capacity, for failure to protect Plaintiff from inmate assaults and the threat of inmate assaults due to increased gang violence. More specifically, Plaintiff alleges that during his 15-month incarceration at TCI beginning September 8, 2016, Defendant failed to protect him from threats, extortion, and violence by prison gangs, particularly the Folk Nation, also known as "the Gs."
This case is one of many Plaintiff has filed in both state and federal courts concerning his incarceration at various prisons run by the South Carolina Department of Corrections ("SCDC"). [See, e.g., ECF No. 53 at 2 n. 1-2].
This matter comes before the court on Defendant's amended motion for summary judgment. [ECF No. 302]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately Defendant's motion. [See ECF Nos. 298, 306]. The motion has been fully briefed [ECF No. 315] and is ripe for disposition.
On April 1, 2020, Defendant filed a motion for summary judgment with supporting affidavits and depositions. [See ECF Nos. 294, 295, see also ECF No. 300 (filed April 2, 2020)]. The next day, Defendant filed a motion for extension of time to file a dispositive motion, informing the court that although the relevant depositions, affidavits, and motion had been filed, a formatting difficulty had arisen concerning the memorandum in support. [ECF No. 301]. Later that same day and the next day, Defendant filed the referenced memorandum, titled "amended motion for summary judgment," along with additional documents [ECF Nos. 302, 303], rendering moot Defendant's motion for extension of time. [See ECF No. 306]. Accordingly, the court considers the following docket entries as part of Defendant's amended motion for summary judgment: ECF Nos. 294, 295, 300, 302, 303.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's amended motion for summary judgment. I. Factual and Procedural Background
Plaintiff originally filed this case on August 2, 2018, bringing claims in his complaint and amended complaint against over 25 defendants concerning prison violence occurring at multiple South Carolina correctional institutions. [See, e.g., ECF No. 39 at 2]. The procedural history of this case is extensive and has been recounted multiple times elsewhere on the docket.
As relevant here, on October 9, 2019, Plaintiff sought dismissal of most of his then-pending claims. [See, e.g., ECF No. 163]. On February 20, 2020, the undersigned issued a report and recommendation, recommending in part the district judge dismiss all of Plaintiff's claims except against Defendant for failure to protect him from gang violence and deny Defendant's motion for summary judgment as to this claim. [ECF No. 191].
On March 5, 2020, Plaintiff filed a motion for extension of time to complete discovery. [See ECF No. 200, see also ECF No. 205 at 2 ("Defendants respectfully request this Court to use its discretion in ruling upon Plaintiff's Motions to Extend Time for Discovery and reopen limited discovery to address any issues deemed relevant by the Court in deciding upon the dispositive motions in this matter."); ECF No. 233 at 10].
On September 28, 2020, the district judge adopted the report and recommendation and granted in part Plaintiff's motion for extension of time to complete discovery, noting as follows:
After review, the Court agrees with Plaintiff that some limited, additional discovery is necessary to ensure that the record is fully developed and that the parties can effectively prepare for trial. Nevertheless, the Court disagrees with Plaintiff that only he should be granted an extension of time for discovery. Rather, the Court finds that both parties should be permitted to conduct some limited, additional discovery with the above goals in mind-fully developing the record and effectively preparing for trial. Thus, the Court grants Plaintiff's motion in part, and the Court remands this matter to the Magistrate Judge to determine the appropriate bounds and time limits for both parties to conduct additional but limited discovery. Additionally, the Court notes that although dispositive motions have been ruled upon, in the interest of judicial economy, if the parties' discovery exposes any information clearly critical to the outcome of this case, then the parties may move to file additional dispositive motions.[ECF No. 233 at 10].
On September 29, 2020, limited discovery was reopened in this case and many discovery disputes have ensued. [ECF No. 235; see also ECF Nos. 240, 247, 250, 264, 289]. The relevant facts on the record, taken in the light most favorable to Plaintiff, including those obtained during the limited reopening of discovery, are as follows:
Plaintiff is a state prisoner serving three concurrent 20-year sentences for kidnapping, armed robbery, and assault and battery with intent to kill, with a sentence start date of June 15, 2007. [ECF No. 155-1 ¶ 2]. Plaintiff was administratively transferred to TCI on September 8, 2016, and placed in the Taw Caw Unit, a general population unit. Id. ¶ 3. During the 15 months he was incarcerated at TCI, Plaintiff incurred and was convicted of charges for assault of an inmate with intent to kill/injure, discussed more below, as well as possession of a weapon, possession of contraband/cell phone, and two counts of creating a social networking site. Id. ¶ 4.
Plaintiff declares, generally, that during the time he was incarcerated at TCI, he was threatened and extorted by prison gangs, particularly the Gs. [ECF No. 174-5 ¶¶ 2-3]. Plaintiff alleges the Gs threatened, intimidated, and assaulted him, forcing him to procure drugs, alcohol, tobacco, cellphones, and other related contraband for them. Id. Plaintiff alleges he witnessed the Gs kill multiple inmates though the use of shanks, axes, pipes, poles, and by lynching and that he witnessed inmate-on-inmate stabbings, beatings, and riots. Id. Plaintiff alleges correctional officers were afraid and coordinated with the gangs and that the Gs ran and governed the Taw Caw Unit. Id. ¶¶ 4-5.
In contrast, Defendant attests that during the time Plaintiff was incarcerated at TCI, "there were 8 documented assaults with a weapon . . . that involved inmate on inmate violence" and "11 incidences of using an object to cut or puncture another," the latter of which resulted "in the only inmate death seen in that period." [ECF No. 155-1 ¶ 12; see also ECF No. 174-8 (monthly management information reports for TCI from January 2016 to April 2018, detailing inmate deaths and assaults); ECF No. 155-3 (summary of details of incidents of inmate death and violence from May 8, 2016, to January 16, 2018)].
More specifically, Plaintiff testified that shortly after his arrival at TCI in October 2016, he witnessed a gang incident where an officer was assaulted and his keys were taken, inmates unlocked cells and damaged property, and security had to be brought in to secure the scene, but no inmates were seriously harmed. [See ECF No. 294-1 at 48:2-50:8, 53:7-55:7; see also ECF No. 174-5 ¶ 3]. Plaintiff testified that shortly after this incident, he spoke with Rodriguez Bell ("Bell"), the leader of the Gs, and the two agreed the Gs would take a cut of any of the illegal activity Plaintiff was involved in, including, for example, procuring drugs, cell phones, or other contraband. [ECF No. 294-1 at 52:1-53:6, 69:2-71:18]. Plaintiff testified that because of this arrangement, he was "kinda like in the safe zone." Id. at 73:18-74:6.
Plaintiff testified that during the time from when he agreed to the arrangement with Bell until the December 31, 2017 incident discussed below, he did what the Gs had asked him to do and gave them their cut, so he felt he did not have any problems with them, although he testified that things were "getting so intense" and that he knew "hostility was brewing" towards a particular inmate, Jerome Capers ("Capers"), who was dealing in contraband, but was not giving a cut to the Gs. Id. at 74:7-78:9.
Also, during this time in December 2017, Plaintiff's mother, Thomasina Goss-Hartwell ("Goss-Hartwell"), contacted Defendant, although the precise date and content of that conversation is unknown. [See, e.g., ECF No. 174-18 ¶ 3].
In her deposition, Goss-Hartwell repeatedly confirmed she spoke with Defendant in December 2017 [see, e.g., ECF No. 294-2 at 36:17-37:11, 43:3-44:6, 44:23-46:25, 56:22-57:21, 111:20-112:6, 131:2-3], but, based on her testimony, the actual date of the conversation and contents of that discussion are unknown, with Goss-Hartwell repeatedly testifying she discussed events with Defendant in December 2017 that had not yet occurred. See id. Although Plaintiff maintains in briefing that his mother spoke to Defendant in December 2017, and cites to portions of Goss-Hartwell's deposition, he does not address these discrepancies, indicate what was allegedly communicated to Defendant at this time, nor address Defendant's summary of Goss-Hartwell's testimony on this issue. [See ECF No. 315 at 6-8; ECF No. 303 at 29 n. 72 ("Goss-Hartwell's testimony is clear that Goss contacted her after the December 31, 2017 riot and murder of inmate Capers not before as alleged in Goss's declaration. Goss confirmed at deposition that his contact was after the murder December 31, 2017. Her call to Warden Cothran earlier in December was to check on her son who was on call restriction due to disciplinary convictions because she had not heard from him for a few days through his usual illegal cell calls. She testified she had no warning of impeding gang issues from her son and relayed none to Warden Cothran before the December 31, 2017 event.")].
The parties agree that on December 31, 2017, the Gs started a riot in the Taw Caw Unit:
December 31, 2017. Case 37-2017-038. On December 31, 2017, a Major Inmate disturbance occurred on Taw Caw Unit, B-Side. Between three and four pm, a Correctional Officer was called to get an Inmate from B wing for visitation. He was on B Side when an inmate in a hoodie with a towel around face came up behind him with a knife. He and another inmate forced the guard to release his keys and locked the Correctional Officer in a cell. It
was alleged by certain inmates interviewed that Blood gang members were unlocking cells to other Blood gang members. Inmates opened certain cell doors and a fight ensued. Eight inmates were injured and taken to various medical centers for treatment. One inmate died at the scene. Upon interview of all injured inmates, they refused to identify attackers and signed Criminal Process Withdrawal forms. Death of the inmate occurred secondary to stab wounds to the chest and back. The search of the unit after the event found 10 cell phones, two homemade pick type weapons, two homemade shank type weapons. Prosecutions are pending.[ECF No. 155-3 at 5, see also ECF No. 174-5 ¶ 8].
Plaintiff testified the inmate who was killed, Capers, was from Charleston, South Carolina, like Plaintiff, and up until the riot and Capers's death, Plaintiff and the Gs were "good," but after, things "went south" because of Plaintiff's association with Capers. [ECF No. 294-1 at 72:16-74:6, 109:7-18]. Plaintiff testified, "[a]fter the riot had happened, they were so riled up, till it's like whoever they saw that had any type of relationship, and in my case it was the Charleston relationship with, you know, people who they just killed . . . then I automatically became a target." Id. at 73:21-74:6.
Plaintiff alleges that during the riot, he was beaten and stabbed by members of the Gs, although he also testified that the "stab wound wasn't that serious," because he had on a coat, and therefore "it didn't penetrate much" and "no medical report [was] made, no need for medical services." [ECF No. 174-5 ¶ 8; ECF No. 294-1 at 82:14-83:5, 86:9-19, 87:8-12].
Defendant attests that Plaintiff, while incarcerated at TCI, "received no injuries from alleged inmate violence" and that "[h]is medical records are the best evidence of his lack of injury and lack of complaint of injury." [ECF No. 155-1 ¶¶ 5, 20]. Plaintiff's medical records from this time period reveal no treatment for injuries from alleged inmate violence nor any complaint of any such injuries. [ECF Nos. 155-44, 155-45, 155-46, 155-47, 155-48; see also ECF No. 155-3 at 5 ("According to the inmate bed summary, [Plaintiff] was in Taw Caw A side from 12-14-17 until his transfer 1-16-18 and not involved in this incident. Further, he is not mentioned in the Police Services, SLED or Incident reports")]. Regarding his alleged involvement in the December 31, 2017 incident, Plaintiff additionally submitted to the court declarations completed by two inmates who were incarcerated at TCI during this time—Leonard McBee ("McBee") and Jeffrey Cromer ("Cromer") —who stated they stopped gang members from beating and stabbing Plaintiff during the riot. [See ECF No. 174-6 ¶ 9, ECF No. 174-7 ¶ 8]. However, both McBee and Cromer recanted these statements at their depositions. [See ECF No. 294-5 at 7:13-9:1, 10:13-19, 27:7-19, 29:12-36:17; ECF No. 294-3 at 32:3-10, 89:16-90:8, 98:5-22].
After the riot, the prison was placed on lockdown, during which Plaintiff alleges he was threatened by the Gs. [ECF No. 174-5 ¶ 9; see also ECF No. 294-1 at 105:3-5]. Plaintiff alleges he phoned his mother again through use of illegal cell phones, directing her to relay to Defendant that Plaintiff wanted to be placed in protective custody. [ECF No. 174-5 ¶ 9]. Plaintiff's mother spoke again to Defendant and informed him of a list of names of people involved in the riot, including but not limited to Deslyn White ("White") and Roosevelt Workman ("Workman"), from whom Plaintiff was in fear, and that he wanted to be protected and to move. [ECF No. 294-2 at 106:3-109:15; see also ECF No. 321-1 (notes taken by Goss-Hartwell concerning the call)].
Goss-Hartwell testified Defendant informed her the issue was being investigated, that he or an investigator would get back to her, and that the Taw Caw Unit was on lockdown due to an ongoing investigation and therefore no one could be transferred from the unit. [ECF No. 294-2 at 109:19-24; ECF No. 174-18 ¶ 3]. Defendant attests as follows:
I have reviewed the inmate statements, statement of his mother Thomasina Goss and the sworn deposition taken alleging that Ms. Goss Hartwell called me and provided information alleged to have been provided to her by her son Darrell Goss. Her statement and sworn testimony are at odds and inconsistent, but assuming that her testimony is that she called after the December 31, 2017 death of an inmate and expressed parental concern, said that her son had provided the names of some people he thought were involved, her recollection of my response would be consistent with my practice.
After the December 31, 2017 disturbance resulting in the death [of] an inmate, we were inundated with calls from family members, media outlets and the like. She testified that she told me she had a list of suspected participants in the December 31st events and that I told her I would have an investigator call. She testified that within a day or two she was called by an [South Carolina Department of Corrections ("SCDC")] investigator and that she provided the information. This would be in the normal course . . . . I referred all leads addressing suspects to the investigator John Lightwood. In addition, to protect staff and inmates after the December 31, 2017 events, our contraband team and the state contraband team did repeated sweeps for weapons and contraband throughout the unit. We also immediately locked down all inmates, stopped services and fed
inmates in their cells to protect from further violence and disruptions.[ECF No. 303-2 ¶¶ 32-34, 36].
From the investigation, inmates Workman and White's names kept coming up in connection with the death of an inmate during the inmate disturbance on the Taw Caw Unit on December 31, 2017. Various of the inmates were telling staff that Deslyn White had issues with the inmate who was murdered over control of contraband entering the Unit. Further, information was received that other inmates held these two accountable and that violence against Workman and White may take place. Other inmates, like Goss as alleged by his Mother felt that Workman and White may pose a danger to other inmates as well . . . .
Goss's mother calling to say that she has a list of names of people who may have gang ties was addressed immediately as confirmed by her testimony and an investigator called her and followed up. Within[] a few days we were moving the two persons we had primary intel on to secured lockup . . . .
On the morning of January 16, 2018, Defendant directed that White and Workman be "packed up and taken to the Special Management Unit to be housed in lockup so the investigation could continue." Id. ¶¶ 38-40. White and Workman were transferred during lunchtime, and "[b]ecause the unit was on lockdown following the riot two weeks earlier, all inmates were receiving in cell meals." Id.
The parties contest what occurred next, with Defendant attesting that as White and Workman were being escorted from the Taw Caw unit, Plaintiff and his cellmate Maurice Malloy ("Malloy") "pushed out of their cells during the cells being opened to give the inmates their in-cell lunch tray as the unit was on lockdown" and "engage[d] in a knife attack and stab[ed] these individuals." Id. ¶¶ 36, 40.
According to Defendant, Plaintiff and his cellmate "rushed from their cell with 8-inch and 14-inch homemade shank knives, stabbed an inmate multiple times in the chest and stomach, then chased down another inmate after several directives to stop went unheeded and inflicted stab injuries to the back of the second inmate as well." [ECF No. 174-10 ¶ 33, see also ECF No. 155-1 ¶ 13, ECF No. 155-3 at 9-10; ECF No. 155-5; ECF No. 155-22; ECF No. 155-24]. Defendant further attests that "inmates Goss and Malloy were armed with knives and Goss had the knives lashed to his hands with torn bedsheets," indicating "a planned attack" on White and Workman, who were not armed based on the findings of the investigation that ensued. [ECF No. 303-2 ¶ 41]. Defendant states chemical munition had to be administered three times by various officers before Plaintiff could be taken into custody. [ECF No. 174-10 ¶ 33]. According to Defendant, Plaintiff was then examined by medical on the same day, and these records indicate that Plaintiff was decontaminated from the chemical munitions by shower; additionally, "[n]o report of injury was made by [Plaintiff] and no finding of any injury was made by SCDC staff." [ECF No. 174-10 ¶ 34, ECF No. 155-4 at 1, ECF No. 155-49 at 1, ECF No. 155-22 ¶¶ 11-12; ECF No. 155-23 at 2-5].
Plaintiff, in contrast, alleges a correctional officer unlocked his cell during lunchtime and allowed White and/or Workman to enter the cell. [ECF No. 174-5 ¶ 10; see also ECF No. 294-1 at 144:20-150:25]. Plaintiff alleges these gang members tried to attack him with weapons, and, in response, he defended himself, chasing them onto a different floor and stabbing White and/or Workman, although Plaintiff further admitted that before his cell was opened, he had secured knives to his hands by bedsheets. [ECF No. 294-1 at 144:20-150:25].
Plaintiff alleges the correctional officer was having an "inappropriate relationship" with one of gang members but states he does not have personal knowledge to support this allegation. [ECF No. 174-5 ¶ 11; see also ECF No. 294-1 at 141:1-144:4]. An "affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). In any event, this allegation need not be relied upon in addressing Plaintiff's claim, particularly where Plaintiff testified that did not inform Defendant or other SCDC officials of this allegedly inappropriate situation. [See ECF No. 294-1 at 144:1-8].
Plaintiff objects to the court's consideration of affidavits from "retired Associate Warden James Dean, retired Officer Lee Pack, Officer Jennifer Burgess, and Lieutenant Troy Rock," as well as associated exhibits, arguing that "these additional affidavits exceed the scope of the Court's order reopening discovery." [See ECF No. 315 at 2]. The referenced affidavits and supporting evidence primarily address whether Plaintiff was the aggressor or victim on January 16, 2017. Because the court need not resolve this issue to resolve Defendant's motion, the court also need not address Plaintiff's argument where the court does rely on these affidavits or exhibits.
Plaintiff testified he was injured, but did not inform medical, did not receive treatment, and did not realize until days later that he had a stab wound in his arm that healed without treatment and without a scar. [ECF No. 294-1 at 90:7-9, 91:13-100:22, 103:23-104:2; ECF No. 174-4 at 4 (medical record from January 25, 2018, stating Plaintiff has "small healing scar flexor side of left forearm"); ECF No. 174-17 at 2, see also ECF No. 174-2 at 2]. Due to this incident, Plaintiff was convicted on institutional disciplinary charges for assault of an inmate with a weapon with intent to kill/injure and was transferred to Allendale Correctional Institution. [ECF No. 174-10 ¶¶ 33, 35-36].
According to Defendant, SCDC Police Services investigated and sought to file outside criminal charges against Plaintiff and Malloy for assault and battery with intent to kill, but the individuals stabbed ultimately did not cooperate in the prosecution. [ECF No. 155-1 ¶ 15]. A statewide separation order was entered keeping Plaintiff from serving at any institution where either victim was incarcerated, and Plaintiff was transferred out of TCI that night for the security of the attacked inmates. Id.
Plaintiff testified that while he was in TCI, he did not identify any gang members to any officers or officials, did not file any type of request to staff or any request for police services investigation or anything else related to any direction communication he had with any of the Gs, and made no requests for protective custody. [ECF No. 294-1 at 56:10-13, 60:6-14, 67:6-68:4; see also id. at 61:10-62:15 (testifying that he spoke verbally to certain staff but "without being specific")].
In his declaration, McBee, who was incarcerated at TCI from 2016 to 2017, alleges that the gang members at TCI would use him to hide their knives and other weapons from guards. He says these weapons were created from instruments in the prison such as light fixtures, desks, chairs, and lockers and searches were rare and not thorough. [ECF No. 174-6 ¶¶ 4-6]. McBee alleges TCI was understaffed and therefore only one correctional officer would be assigned to supervise both wings of the Taw Caw Unit, and the officers would rarely come to the unit, instead allowing the inmates, and, in particular, the gang members, to supervise the unit. Id. ¶ 7. McBee further alleges gang members would intimidate, extort, rob, beat, stab, and kill other inmates who were not a part of their gang, and that these violent acts were known to the TCI officials. [ECF No. 174-6 ¶ 8; see also ECF No. 294-5 at 15:5-16:5, 25:10-25 (testifying that he saw some stabbings, beatings, and lynchings, but that most altercations he observed were verbal)]. McBee was allegedly attacked by another inmate who beat him badly with a steel pipe, resulting in his transfer out of TCI. [ECF No. 174-6 ¶ 3].
Another inmate at TCI, Robert Manigault, was also deposed, and he testified he did not witness inmate on inmate stabbings, although he did witness fights. [ECF No. 294-4 at 8:4-10:5 ("I done seen some fights, but I never seen no assault as far as inmate and another inmate on another—on another inmate. But besides the one you [Plaintiff] were encounter in")].
Cromer, who was incarcerated at TCI and who had a cell next to Plaintiff, alleges that TCI's Taw Caw Unit was effectively run by the Gs, who were given "free reign" to intimidate, extort, rob, beat, stab, and kill other inmates. [ECF No. 174-7 ¶¶ 3-5]. Cromer alleges the unit had only one correctional officer assigned to it who was absent for long periods of time and who was rarely present at the unit. Id. ¶ 6. Cromer alleges TCI experienced many riots in 2017, and prior to the December 2017 riot, he informed prison officials that the Gs were trying to get onto the B wing to stab someone, but did not inform Defendant. [ECF No. 174-7 ¶ 7, ECF No. 294-3 at 97:7-98:4]. Cromer additionally alleges he witnessed White and Workman go to Plaintiff's cell door on January 16, 2018, although he did not see if they were carrying knives. [ECF No. 174-7 ¶ 10; ECF No. 294-3 at 85:22-86:16, 93:3-5 ("I saw the door get opened, and the two guys try to run in, and quickly, I saw [the officer] pull out her spray gear, spray, and two guys running out.")].
Consistent with the court's order allowing the parties to file an additional dispositive motion following the reopening of limited discovery on Plaintiff's remaining claim, Defendant filed the instant amended motion for summary judgment arguing that the court should dismiss Plaintiff's claim against him. [See ECF No. 233]. II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
The Eighth Amendment imposes a duty on prison officials "to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks omitted). "Gratuitously allowing the beating . . . of one prisoner by another serves no legitimate penological objective, any more than it squares with evolving standards of decency." Odom v. South Carolina Dept. of Corrections, 349 F.3d 765, 770 (2003) (quoting Farmer, 511 U.S. 833).
However, 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. To establish a claim under the Eighth Amendment, a prisoner must satisfy two elements. "First, the deprivation alleged must be, objectively, 'sufficiently serious.'" Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, a prisoner must present evidence that the prison officials had a "'sufficiently culpable state of mind.'" Farmer, 511 U.S. at 834 (citing Wilson, 501 U.S. at 297). That is, that the defendant acted with deliberate indifference.
To be deliberately indifferent, a prison official must "know of and disregard an objectively serious . . . risk of harm." Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997). "[T]he official must be both aware of facts from which the inference could be drawn that a possibility of harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. A showing of mere negligence does not qualify as deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347 (1986); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).
Additionally, "prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 844. "Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable" on a failure-to-protect claim. Id. at 845; see also Short v. Smoot, 436 F.3d 422, 428 (4th Cir. 2006) (concluding that an officer who responds reasonably to a danger facing an inmate is not liable under a deliberate indifference standard, even if the officer could have taken additional precautions, but did not). This standard reflects prison officials' "unenviable task of keeping [sometimes] dangerous [people] in safe custody under humane conditions[.]" Farmer, 511 U.S. at 845.
Under the qualified immunity defense, asserted here by Defendant, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity ensures that "[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) ("Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.").
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.
Based on the expanded record currently before the court, the undersigned recommends the district judge grant Defendant's motion for summary judgment and dismiss Plaintiff's remaining claim. The "harm" Plaintiff alleges can be roughly divided into three areas: (1) general gang violence, (2) specific threat of gang violence to Plaintiff prior to the events of December 31, 2017, and (3) specific threat of gang violence to Plaintiff following the events of December 31, 2017. The court addresses each of these categories seriatim.
The court rejects Plaintiff's argument that Defendant's instant amended motion for summary judgment is not properly before the court because "no new information has been presented" that is "'clearly critical' to the outcome of the case. [ECF No. 315 at 4]. As discussed above, the expanded record in this case does not support Plaintiff's claim against Defendant.
First, Plaintiff has submitted evidence in support of a generalized and pervasive threat of gang violence in TCI during his time there. Plaintiff stated he witnessed "the Gs kill multiple inmates by stabbing them to death with shanks; hitting them in the head with axes; beating them with pipes/poles; and lynching them," "repeatedly witnessed inmate on inmate stabbings, beatings, and riots," and personally endured intimidation, threats, extortion, beatings, stabbings, and assaults. [See ECF No. 174-5 ¶¶ 2-3; ECF No. 174 at 2-3, 11-12].
As stated, Defendant contests this assertion, putting forth evidence that during the time Plaintiff was incarcerated at TCI, "there were 8 documented assaults with a weapon . . . that involved inmate on inmate violence" and "11 incidences of using an object to cut or puncture another," the latter of which resulted "in the only inmate death seen in that period." [ECF No. 155-1 ¶ 12].
However, Plaintiff's position, that Defendant should have protected him from the obvious general risk of gang violence that occurred and harmed him, is undercut by evidence also offered by Plaintiff, that he was not significantly harmed from gang violence while incarcerated at TCI and that, although inmate-on-inmate violence occurred, it was not reported nor did the victims seek medical assistance. [See, e.g., ECF No. 294-1 at 54:2-3 (Plaintiff testifying that "some inmates, the[y] get, you know hurt, but they wasn't seen by medical or nothing"); see also ECF No. 294-3 at 70:4-15 (Cromer confirming that "an inmate can be injured from another inmate by way of assault, stabbing, maybe hit in the head with some type of pipe or what have you and not report the incident); ECF No. 294-5 at 16:22-17:10 (McBee confirming the same in response to Plaintiff's questions)]. Additionally, Plaintiff has shown he never reported what he allegedly saw or experienced to SCDC officials or Defendant.
In addition to Plaintiff testifying that injuries he received from gang violence during his time at TCI were not significant, Defendant has put forth evidence from Dr. John McRee, who reviewed Plaintiff's medical records and examined Plaintiff in December 2018, about a year after the alleged events occurred, wherein he opined to a reasonable degree of medical certainty that examination of Plaintiff and review of his records "demonstrate that [Plaintiff] suffers from no signs or symptoms of any serious medical condition or injuries related to exposure to excessive violence, nor does he demonstrate the signs of any serious mental health or physical health conditions or symptoms" and "reveal no evidence that this inmate has ever suffered any physical injuries incurred . . . through a fight or disruption by other inmates or staff." [See ECF No. 155-38 ¶¶ 3-4].
Even if the record could establish a substantial harm or threat of harm from general gang violence sufficient to support Plaintiff's cause of action, the record shows that Defendant and other SCDC officials were not deliberately indifferent to that harm, but, instead, acted reasonably in response by taking the following actions:
SCDC and the various Institutions to include Turbeville have a rigorous inmate disciplinary system that charges and punishes inmates for violations as a deterrent. In addition, the Office of Police Services investigates assaults and coordinates with prosecutorial agencies to bring and pursue outside criminal charges as a deterrent. SCDC has enacted an expansive policy entitled Security Threat Group promulgating guidelines for the development of processes to access, identify, designate, monitor and validate Security Threat Group activities and members. SCDC has designated Security Threat Group officers at each Institution, to include Turbeville and Intel officers are also assigned throughout SCDC. As part of that, there is the Institutional Security Threat Group Committee at each institution charges with compiling and assessing information regarding STG activities. Each of these affirmative actions combat the issue of gang related crime and violence. The contraband policy and contraband officers and the criminal prosecution of persons violating these policies, be it staff or inmate, demonstrates a commitment to curbing gang footholds in the prison.
Inmate Goss's suggestion that SCDC can simply put all gang members in one place and separate them is an impossible and undesirable task. Just as we cannot pick out, segregate and remove gang members from our community, they cannot be eradicated from the institution. The goal is one of even distribution of known members to avoid dominance, and identification where possible for monitoring and stemming criminal enterprise. If we did separate out gang members who participated in gang violence, Inmate Goss would be in with the gangs. In his SCDC records there are examples of Goss self-identifying as having gang affiliations and he alleges gang related enemies. His conduct at Turbeville certainly place him in a suspected category for gang affiliation. Another level of SCDC protection for inmates is the Protective Custody Policy that allows inmates to request PC and provides a detailed and thorough process of investigation. Further, Goss testified that he never advised SCDC staff of any alleged known gang members, gang activities or alleged officers who he thought were cooperating with gang or contraband sales. When such information is in hand, we terminate employees found to be complicit after investigation, prosecute employees or inmates for criminal offenses and protect inmate sources of information.
Goss also alleges that I have refused to criminally charge or otherwise discipline violent inmates in recorded videos or institutional cameras, beating, lynching, stabbing, or killing other inmates. As set forth herein, the Office of Police Services investigates assaults and coordinates with prosecutorial agencies to bring and pursue outside criminal charges as a deterrent. The primary problem with securing prosecutorial support for a case is lack of victim participation. As when Goss was recommended for criminal charges out of the stabbing incident, his victim signed a waiver refusing to cooperate in the prosecution.
Goss alleges that I have refused to remove from prisons all instruments that could be used as a weapon or to create a weapon. The best example of the impossibility of that suggested course of action can be seen in the photographs of the shanks confiscated and supplied in the discovery production. Shanks are made from pieces of wood, shoe supports, destroyed
infrastructure of the hardscape of the prison to include bed springs, light covers, drain covers, pens, writing utensils, cutlery, hard plastic. We have an aggressive search policy and there is an Institutional Search team out of Columbia who search randomly for contraband.[ECF No. 303-2 ¶¶ 27-30 (citations omitted)].
Plaintiff does not respond to the evidence provided by Defendant and has failed to put forth evidence that Defendant was deliberately indifferent to the general threat of gang violence while Plaintiff was incarcerated at TCI.
In response to arguments made by Plaintiff, Defendant has also put forth evidence that TCI, at the time Plaintiff was incarcerated there, was not overcrowded and, although the facility was understaffed, the facility employed methods to cope with the understaffing in order to provide the necessary security for the inmates and staff. [See ECF No. ECF No. 303-2 ¶¶ 6-8, 18-23]. Plaintiff has not disputed nor addressed this evidence in briefing. [See ECF No. 315].
Second, it is undisputed that Plaintiff had been working with the Gs in illegal operations and drug and contraband sales, and Plaintiff did not consider himself to be at risk from these individuals until the events of December 31, 2017 transpired. At no time, neither before nor after December 31, 2017, did Plaintiff inform any officials or personnel, including Defendant, of any risk he perceived. As to the alleged phone call made by Goss-Hartwell prior to the events of December 31, 2017, Plaintiff has failed to put forth evidence that Goss-Hartwell communicated to Defendant that Plaintiff was at risk for harm, particularly where Plaintiff himself testified he did not believe that to be the case. Thus, there are insufficient facts for a reasonable jury to conclude that Plaintiff was exposed to a substantial risk of harm prior to the December 31, 2017 event or that Defendant knew of such a risk and did not respond in a reasonable manner.
Plaintiff argues that Defendant's motion fails "because Warden Cothran, again, fails to address what actions he took after receiving phone calls from Goss' mother before the December 31st 2017 riot." [ECF No. 315 at 6]. In support of his argument, Plaintiff submits the following testimony from Goss-Hartwell:
I spoke to [Defendant] prior to that around December of 2017, and I was telling him again, being threatened, Darrell being threatened, injured in a riot. He was injured in a riot. He was injured in a riot, was stabbed in the stomach and head and everything. I told Warden Cothran there's a lot of inmates in Taw Caw is fear of their lives. And I told him that the gang members killed the inmate, they were still being supported by the officer. So he had me talk to an investigator . . . .Id. at 7 (citing ECF No. 294-2 at 43:8-16). However, it is undisputed that the events Goss-Hartwell references—the riot, the stabbing, the inmate being killed, and the investigator—are events that occurred on or after December 31, 2017.
In his declaration submitted prior to the limited reopening of discovery, Plaintiff states that in December 2017, apparently prior to the December 31, 2017 event, correctional officers allowed the door dividing the A and B wings of the Taw Caw Unit to remain open, resulting in an inmate from the B wing crossing over to the A wing and beating and stabbing an A wing inmate. [ECF No. 174-5 ¶ 6]. Plaintiff alleges that because of this incident, there was "talks of retaliation among the Gs because it involved one of their members," and the Gs, armed with various weapons, tried repeatedly thereafter to access the other wing of the Taw Caw Unit. Id. Plaintiff alleges that in response to these efforts, he called his mother, informed her of the situation, and told her to inform Defendant so he could stop it. Id. ¶ 7. Plaintiff alleges his mother did so and Defendant said he would look into the situation. Id. However, neither Plaintiff nor Goss-Hartwell reference this alleged event in their extensive depositions, including, most importantly, regarding the communications between them or with Defendant. [See ECF No. 294-1; ECF No. 294-2].
Third, after December 31, 2017, Goss-Hartwell again called Defendant and informed him of a list of names of people involved in the riot, including but not limited to White and Workman, whom Plaintiff feared, and that he wanted to be protected and to move. Even assuming this evidence were to show a substantial risk of harm from gang violence following December 31, 2017, Plaintiff has failed to submit evidence that Defendant was deliberately indifferent to that risk of harm. In response to Goss-Hartwell's call, in addition to the numerous calls made by others, Defendant alerted SCDC police services, had Goss-Hartwell interviewed, and had White and Workman moved to secured lockdown for further investigation. In addition, following the December 31, 2017 events, TCI was on lockdown, multiple sweeps were made for contraband, and meals were served to inmates in their cells for their safety.
Although Plaintiff argues otherwise, the record shows Defendant acted reasonably in response to the potential threat communicated to him by Goss-Hartwell. As Defendant stated:
I cannot protect against a risk I am not aware of. Had Goss or his mother told me the full story, that Goss was in an illegal contraband ring with the Gs, that their arrangement had soured after the December 31, 2017 events, then I would have had the information to make decisions and access risks. As such, I was only told that she had names of inmates suspected to be gang members who I passed on to Police Services and schedule their call to Ms. Goss-Hartwell. At no time did Goss make any protective custody request and had his mother said he wanted protective custody, an immediate protective concerns review and protocol would be initiated removing him from the unit and placing him in a lockdown until the review process was completed. Those words trigger a paper trial . . . . Goss's protecting his criminal enterprise deprived me of information which I would need to make the best decisions as to what actions to take. Even with the limited information, I alerted SCDC police force, had Mrs. Goss-Hartwell interviewed and set about to have those inmates moved to secured lockdown cells for investigation.[ECF No. 303-2 ¶ 37].
Plaintiff disagrees, arguing Defendant should have moved him and that Defendant's decision to move White and Workman was "an unreasonable response to this particular safety and security concern" where Goss-Hartwell informed Defendant of a threat to Plaintiff beyond just White and Workman. [ECF No. 315 at 11, 16]. Plaintiff further argues as follows:
Contrary to Cothran's claim that Goss nor his mother told him that Goss wanted to be placed on protective custody, Goss' mother testified that she told Warden Cothran that her son
feared for his life and needed to be protected; and although she may not have used the term "protective custody," she nonetheless[] communicated to Cothran the facts and circumstances surrounding her son's phone call to her, which should have prompted Cothran to initiate the protocol for protective custody for Goss.Id. at 17.
Plaintiff also argued in his deposition that Defendant failed to protect him by "fail[ing] to put reliable officers in that dorm" on December 31, 2017, including one officer, Officer Scott, that Plaintiff alleges "catered to the Gs." [ECF No. 294-1 at 124:19-127:3]. However, Plaintiff has offered no evidence in support of this supposition and testified neither he nor anyone he knew informed Defendant about their concerns as to this officer prior to Goss-Hartwell's call to Defendant following the December 31, 2017 event. See id.
As previously noted, Goss-Hartwell's testimony provided at her deposition is unclear, but she did indicate Plaintiff informed her, and she communicated to Defendant, that he felt threatened, but she was not informed who had threatened Plaintiff, and that Plaintiff "felt in danger and he needed to be protected." [See ECF No. 294-2 at 46:3-25]. Goss-Hartwell further testified as follows:
I told Warden Cothran who I was, who you were, and I told him about the unit. I told him about how you were in fear for your life because the gang members who had killed the inmate on December the 31st, they were being supported and protected by the officers. And from what I understand, from my remembrance, they left the rooms, the same inmates that were terrorizing the dorm for years, stabbing and beating everything, that's what have you threatened, and that was my concern. So I also told him that they can't sleep at night, the inmates can't sleep at night. I wasn't only thinking about you, I was thinking about all of the
inmates in there. So I told him that they'd be threatening, and that's what I told him and he told—yes.Id. at 109:2-15. Goss-Hartwell additionally testified she informed Defendant that Plaintiff "was in fear for [his] life" and "wanted to move." [ECF No. 294-2 at 108:15-18; see also ECF No. 294-1 at 122:22-123:12 (Plaintiff testifying that he called his mother after the December 31, 2017 incident but did not tell her who killed Capers or about his arrangement with the Gs that had fallen apart)].
Plaintiff appears to concede that Goss-Hartwell did not testify that she asked for protective custody for him. [ECF No. 315 at 17]. As stated, Goss-Hartwell's testimony is unclear. She testified that it was possible she did not use the words "protective custody" and that she informed Defendant that Plaintiff "felt in danger" and "needed to be protected." [ECF No. 294-2 at 58:9-59:2]. In response to questioning by Plaintiff, Goss-Hartwell responded "no" to the question "at any time during my conversations with you . . . did I ever use the word protective custody," but then stated she informed someone that Plaintiff needed protective custody, although she was not sure who. Id. at 120:1-20. She then stated she asked Defendant and the investigator about protective custody. Id. at 120:20-24; see also id. at 126:21-127:5.
Plaintiff's evidence does not demonstrate that Defendant acted unreasonably in response to the information that was communicated to him. See Short, 436 F.3d at 428 (concluding that an officer who responds reasonably to a danger facing an inmate is not liable under a deliberate indifference standard, even if the officer could have taken additional precautions, but did not).
Although Defendant was aware that Plaintiff felt generally threatened following the events of December 31, 2017, where another inmate was killed, neither he nor Goss-Hartwell were aware that Plaintiff, as he now admits, had reasons to believe that he was at specific risk for gang violence. Although Defendant may have been informed that Plaintiff wanted to be moved, the record is clear Plaintiff never requested protective custody—although he could have—and that Plaintiff has "a history of wanting to move around institutions without be transferred." [ECF No. 303-2 ¶ 9]. Indeed, Plaintiff testified concerning his efforts to be moved without informing SCDC staff for the reason:
Plaintiff testified that TCI officials would not have been aware of any problems between him and Workman or White. [ECF No. 294-1 at 110:9-21].
Q. All right. You said that you were speaking to [the TCI mental health counselor], but you weren't trying to get too specific, because you didn't want to get labeled a snitch. So what type of information did you give her?
A. I just basically tell her get me out that dorm. Get me out the dorm; put me somewhere else. You know, I just basically was trying to get away from Taw Caw, 'cause I felt like had I gotten away, that would have kinda made it a little better. Although, they still could have, you know, been attacking me. But instead of just coming out snitching and this person, that person, I felt that the better more tactic was to see if I could get moved to another dorm, know what I'm saying. So that's what I did. I was just trying to get moved.
Q. All right. So you were seeking through your mental health counselor to talk to her about getting moved to another dorm,
without being specific, so that you would not raise any heads that you were being a snitch?[ECF No. 294-1 at 60:21-61:14]. The same is true here where Plaintiff testified that he gave Goss-Hartwell limited information to convey to Defendant as to why he felt he was in danger and sought to be moved.
A. Right, right, right, right.
Plaintiff additionally testified regarding why he failed to request protective custody himself:
Q. You knew how to ask for protective custody because you had done so in the past. You had gone through the review process. You had been successful, and within a month and half you had transferred out of Kershaw and into Turbeville.
A. Right.
Q. So why was there no protective custody request from Inmate Goss during this window of time? To me, that indicates you didn't want to leave Turbeville.
A. Okay. And I understand what you're saying, but that's not the case. The case was that if I had requested protective custody at that time, knowing that I was basically under obligation to Gs, that would have—that would have just set a new course for me wherever I had went. So . . . Right. I felt the best move was just to slowly move, slowly move. 'Cause if I had done PC at that time, whether they would ship me to another yard, that would have caused them to follow me. Now, y'all could do—if I ran from them and still owed them money, so I didn't want to do it that way.
Q. All right. Mr. Goss, do you understand that by making a decision to slowly move, you're depriving SCDC officials of the information they need to protect you?
A. And I'm depriving them of that information because my life is at stake, so I gotta put my life—. . . versus protecting SCDC interests.Id. at 67:6-68:12.
There is no evidence on the record that Defendant was aware of a specific substantial risk of harm from the Gs to Plaintiff prior to or following the December 31, 2017 events, nor that Defendant purposefully disregarded any such risk. The record further shows Defendant responded to known threats of harm in a reasonable manner. Accordingly, the undersigned recommends the court find Defendant entitled to qualified immunity and grant his motion for summary judgment.
Given the recommendation above, it is unnecessary to address Defendant's arguments that he is also entitled to summary judgment because Plaintiff's complaint fails to comply with 42 U.S.C. § 1997e(c), which provides for dismissal of any action which is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief, and lacks an arguable basis in law, warranting dismissal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1) (1999). [See ECF No. 303 at 114-116].
Additionally, in a § 1983 claim, a defendant cannot be found liable under a theory of vicarious liability or respondeat superior. See Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (holding that there is no respondeat superior liability under § 1983). Thus, Defendant's status as the Warden of TCI and the overall supervisor of all TCI personnel does not subject him to liability. Although under § 1983 liability can be imputed to supervisory officials under certain circumstances, see Shaw v. Stroud, 13 F. 3d 791, 799 (4th Cir. 1994), it does not appear Plaintiff asserts such a claim. To the extent Plaintiff intended to so assert, he has failed to submit specific evidence or argument regarding Defendant's knowledge of his subordinates' actions, Defendant's response to such knowledge, or as to any causal link between Defendant's response and Plaintiff's alleged constitutional injury. See id. Therefore, such a claim would not survive summary judgment. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's amended motion for summary judgment. [ECF No. 302].
IT IS SO RECOMMENDED. May 21, 2021
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).