Opinion
NO. 5:19-CV-00188-TES-MSH
06-03-2020
KENDRICK D. HEATH, Plaintiff, v. WARDEN CLINTON PERRY, et al., Defendants.
REPORT AND RECOMMENDATION
Pending before the Court is Defendants' motion for summary judgment (ECF No. 21) and Plaintiff's motion for protective custody (ECF No. 16). For the reasons explained below, it is recommended that Defendants' motion be granted and Plaintiff's motion be denied.
PROCEDURAL BACKGROUND
This case arises out of Plaintiff's confinement at Macon State Prison ("MSP"). Plaintiff contends Defendants Perry and Sales—the warden and deputy warden at MSP, respectively—were deliberately indifferent to a substantial risk to his safety by failing to protect him from attacks by other inmates in 2018 and 2019. Compl. 3-4, ECF No. 1; Pl.'s Mot. for Protective Order 1-2, ECF No. 16. He raises a claim under 42 U.S.C. § 1983, alleging a violation of his Eighth Amendment rights and requesting only injunctive relief. Compl. 1, 4-5. The Court received his complaint (ECF No. 1) on May 10, 2019. After preliminary screening, his claims were allowed to proceed for further factual development. Order 6, Aug. 9, 2019, ECF No. 7. Defendants answered (ECF No. 14) on October 17, 2019. On January 24, 2020, the Court received Plaintiff's motion for protective custody (ECF No. 16). Defendants moved for summary judgment (ECF No. 21) on February 14, 2020. The Court notified Plaintiff of Defendants' motion for summary judgment and informed him that he must file a response within thirty days after service. Notice, Feb. 14, 2020, ECF No. 23. On March 30, 2020, the Court granted Plaintiff an extension until April 30, 2020, to file a response to Defendants' summary judgment motion. Order 2, ECF No. 25. Plaintiff failed to respond. Defendants' motion for summary judgment and Plaintiff's motion for protective custody are ripe for review.
DISCUSSION
I. Defendants' Motion for Summary Judgment
Defendants move for summary judgment, arguing (1) Plaintiff cannot establish that they were deliberately indifferent to his safety, and (2) his requested injunctive relief is improper. Defs.' Mot. for Summ. J. 1, ECF No. 21. The Court agrees the evidence does not show that Defendants were deliberately indifferent to Plaintiff's safety and recommends granting summary judgment on this ground. The Court declines to address Defendants' second ground.
Plaintiff requests the Court to order the Georgia Department of Corrections to segregate gang members from non-gang members and to bar Plaintiff's placement in a dorm over-populated with gang members. Compl. 3-4, ECF No. 1.
A. Summary Judgment Standard
Summary judgment may be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted). If the movant meets this burden, the burden shifts to the party opposing summary judgment to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact, or that the movant is not entitled to judgment as a matter of law. Id. at 324-26. This evidence must consist of more than conclusory allegations. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
B. Plaintiff's Failure to Respond
Plaintiff did not respond to Defendants' motion for summary judgment or their statement of facts despite the Court's notice of his need to do so. Notice, Feb. 14, 2020, ECF No. 23. The Local Rules of the United States District Court for the Middle District of Georgia (hereinafter "Local Rules") provide:
The respondent to a motion for summary judgment shall attach to the response a separate and concise statement of material facts, numbered separately, to which the respondent contends there exists a genuine dispute to be tried. Response shall be made to each of the movant's numbered material facts. All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate.M.D. Ga. L. R. 56. The Court, however, "cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion." United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). In considering the merits of a motion for summary judgment, even an unopposed motion, a court must, at least, "review all of the evidentiary materials submitted in support of the motion for summary judgment." Id. at 1101-02. "In other words, the court cannot simply accept the facts stated in a moving party's statement of material facts as true, but must also review the movant's citations to the record and confirm that there are no issues of material fact." Major v. Toole, No. 5:15-CV-483-MTT, 2018 WL 5811484, at *2 (M.D. Ga. Nov. 6, 2018).
C. Undisputed Material Facts
Plaintiff entered MSP on January 8, 2015. Movement History 2, ECF No. 21-5. MSP houses approximately 1,700 inmates and is one of seven closed-security prisons in Georgia. Perry Decl. ¶ 6, ECF No. 21-4. Closed-security prisons house higher risk offenders compared to medium or minimum-security prisons. Id. MSP has seven buildings for general population housing—D, E, F, G, K, L, and M. Id. ¶ 7. Better-behaved inmates tend to be housed in buildings K-M. Id. ¶ 14. MSP also has two segregation buildings—H and J—for inmates with disciplinary infractions, violent histories, or need for protective custody. Id. ¶¶ 9-10. H-building houses Tier-I offenders, and J-building houses Tier-II offenders. Id. ¶ 10. The Tier-II program is a phased, incentive-based program that allows inmates who pose a security risk to work back into general population. Perry Decl. ¶ 16. J-building is divided into two units with one-person cells (J-1) and two-person cells (J-2). Id. ¶ 11. Prison officials review the status of Tier-II inmates every ninety days. Id. ¶ 16.
Gangs exist at all Georgia prisons, and MSP is no exception. Id. ¶ 18. MSP officials take various steps to address the threat posed by gang members. These include collecting information on gang membership—both during initial intake and after placement—and tapping intelligence sources within the prison population to determine potential gang conflicts. Id. ¶¶ 20-21. In addition, gang members are dispersed throughout the facility to dilute the threat posed by a high concentration of gang members in individual units. Id. ¶¶ 21-25. Not all gang members pose a disciplinary problem, while some non-gang members do. Perry Decl. ¶ 26.
Plaintiff, for example, has received thirty disciplinary infractions while at MSP. Disciplinary History 1-2, ECF No. 21-8.
MSP officials also take steps to decrease the risk of violence within the prison. Id. ¶ 27. These include efforts to locate weapons and contraband by a complete "shakedown" of the entire prison—including strip searches of each inmate—every thirty days, constant random pat-down searches, and the use of metal detectors. Id. ¶¶ 28-29. Further, MSP staff hold daily meetings to discuss security issues and also directly communicate their expectations to inmates during inspections. Id. ¶ 28. The prison uses security lockdowns to respond to violent incidents. Id. ¶ 30.
On November 11, 2018, Plaintiff was in his assigned cell in dorm unit F-1 when a group of inmates armed with a shank forced him from his cell and robbed him. Compl. 3; Pl.'s Dep. 11:21-12:1, ECF No. 21-3. Following the incident, Plaintiff complained to a lieutenant, who moved him to unit H-1, a Tier-I segregation unit, for his own safety. Compl. 3; Pl.'s Dep. 12:1-3; Perry Decl. ¶ 10. Plaintiff did not ask for protective custody following the incident, though he spoke with Defendants a week later, and they told him they would not return him to F-1. Pl.'s Dep. 61:16-62:2, 70:23-71:2. Plaintiff contends Defendants also promised to not put him in a "gang unit." Id. at 12:12-18; Comp. 3-4. However, after his release from segregation, Plaintiff was moved to G-1, which he contends is a "gang unit." Compl. 4; Pl.'s Dep. 62:4-6. When he raised the matter with Defendants, they told him that if he did not receive any disciplinary infractions, they would move him to a unit for better-behaved inmates. Pl.'s Dep. 62:8-14. Between November 2018 and March 5, 2019, Plaintiff incurred seven disciplinary infractions. Disciplinary History 1, ECF No. 21-8.
Plaintiff identifies buildings E-G as "gang units." Pl.'s Dep. 126:19-20 ECF No. 21-3. Defendants deny they maintain designated "gang units" at MSP, and Plaintiff admits that even what he terms "non-gang units" house gang members, just fewer of them. Perry Decl. ¶ 14, ECF No. 21-4; Pl.'s Dep. 15:16-18. According to Warden Perry, creating gang-free units would be impossible, and a high concentration of gang members in particular units would pose a security risk. Perry Decl. ¶¶ 21-25.
On March 5, 2019, Plaintiff was still in G-1 when he was again confronted by inmates who placed a shank to his neck, removed him from his cell, and robbed him. Compl. 4; Pl.'s Dep. 13:10-12; 75:19-24. Plaintiff reported the incident, and he was again placed in H-building segregation. Pl.'s Dep. 62:16-20. After this attack, Plaintiff requested protective custody, but was refused. Id. at 62:17-23. Plaintiff remained in H-building segregation until May 23, 2019, when he was moved for three weeks to L-building before being placed in D-building on June 18, 2019. Movement History 1. Plaintiff then spent time in segregation before returning to D-building on July 29, 2019. Id.
In his deposition, Plaintiff alleged the second attack occurred on March 9, 2019. Pl.'s Dep. 13:11-12. In his complaint, however, he alleged the attack occurred on March 5, 2019, and his movement history shows he was placed in segregation on March 5, 2019. Compl. 4; Movement History 1, ECF No. 21-5.
Plaintiff was in D-building when he was attacked and robbed for a third time on August 18, 2019. Pl.'s Mot. for Protective Custody 2, ECF No. 16; Pl.'s Dep. 14:13-18, 98:17-99:3. He suffered a "busted" nose and lip and blackened eye. Pl.'s Dep. 100:9-10. Plaintiff was removed from D-building and returned to H-building Tier-I segregation. Id. at 126:12-13. On December 3, 2019, Plaintiff was moved to Tier-II segregation in J- building due to excessive disciplinary infractions. Movement History 1; Pl.'s Dep. 126:1-23; Perry Decl. ¶ 17. Currently, Plaintiff is housed in a single-person cell in Tier-II segregation and—per Warden Perry's instructions—will continue to have his own cell while in Tier-II segregation. Perry Decl. ¶ 36. Plaintiff testified he does not mind this arrangement. Pl.'s Dep. 127:1-8.
Plaintiff does not know any of the inmates involved in the three attacks, nor has he identified any of them to MSP staff. Pl.'s Dep. 12:4-7, 13:4-8, 72:22-73:4, 76:1-5, 78:17-80:24, 96:5-7, 98:9-11, 99:5-14, 100:13-17. Each assault involved different inmates. Id. 83:11-15, 140:6-8. Further, while he believes his assailants were gang members based on their behavior and the fact that they robbed him, he does not know them to be members of the same gang. Id. at 83:3-13, 100:20-102:25. Finally, Plaintiff has never received any advance threats from inmates at MSP, nor has he ever reported specific threats to Defendants or MSP staff. Pl.'s Dep. 38:5-39:12, 150:9-151:13; Perry Decl. ¶ 35; Sales Decl. ¶ 3.
Plaintiff contends Defendants should have been able to identify his assailants through camera footage. See, e.g., Pl.'s Dep. 12:7-10. According to Defendants, they are not aware of any assaults involving Plaintiff at MSP, and Warden Perry has been unable to locate any incident reports of such assaults. Perry Decl. ¶ 37; Sales Decl. ¶ 3, ECF No. 21-11. Further, while there are cameras throughout MSP, footage is only retained when there is a documented incident or investigation. Perry Decl. ¶ 37. Nevertheless, for purposes of this motion, the Court assumes the three attacks occurred as Plaintiff states. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (requiring the Court, at the summary judgment stage, to construe the evidence and draw all inferences in the light most favorable to the non-moving party).
D. Failure-to Protect Standard
The Eleventh Circuit has held there is an Eighth Amendment right "to be protected from the constant threat of violence and from physical assault by other inmates." Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986) (per curiam). To establish a failure-to-protect claim, a prisoner must show (1) a substantial risk of serious harm; (2) the prison officials' deliberate indifference to that risk; and (3) causation. Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019) (per curiam). "Merely negligent failure to protect an inmate from attack does not justify liability under Section 1983[.]" Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.1990) (per curiam).
When examining the first element—a substantial risk of serious harm—courts use an objective standard. See Marsh v. Butler Cty., Ala., 268 F.3d 1014, 1028-29 (11th Cir. 2001) (en banc), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-63 (2007). A plaintiff must "show conditions that were extreme and posed an unreasonable risk of serious injury to his future health or safety." Marbury, 936 F.3d at 1233 (internal quotation marks omitted). This may be established by demonstrating "(1) an individualized risk; i.e., specific threats directed toward an inmate for reasons personal to him, or (2) generalized conditions of dangerousness." Wilson v. Danforth, No. CV 316-040, 2019 WL 3977957, at *8 (S.D. Ga. June 27, 2019), recommendation adopted by 2019 WL 3987753 (S.D. Ga. Aug. 22, 2019) (citing Bugge v. Roberts, 430 F. App'x 753, 758 (11th Cir. 2011)). "For the latter, an inmate plaintiff must show they are confined 'in a prison where violence and terror reign.'" Id. (quoting Harrison v. Culliver, 746 F.3d 1288, 1299 (11th Cir. 2014)).
The second element—the defendant's deliberate indifference to that risk—has two components: one subjective and one objective. Marbury, 936 F.3d at 1233. To satisfy the subjective component, a plaintiff must show that the defendant was "both [] aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and also draw[n] the inference." Id. To satisfy the objective component, a plaintiff must show that the defendant "responded to the known risk in an unreasonable manner, in that he or she knew of ways to reduce the harm but knowingly or recklessly declined to act." Id. (internal quotation marks omitted).
Regarding causation, a "plaintiff must show a necessary causal link between the [defendant's] failure to act reasonably and the plaintiff's injury." Id. (internal quotation marks omitted).
E. Analysis
Plaintiff alleges Defendants were deliberately indifferent to his safety by placing him in dorms with gang members following the August 2018 and March 2019 attacks. Compl. 3-4; Pl.'s Dep. 61:24-62:17, 63:20-23, 97:8-9. He also contends MSP is "infested" with methamphetamine, causing drug-addicted inmates to attack and rob other inmates. Pl.'s Mot. for Protective Custody 2. He alleges there is "no security at [the] prison at all," with officers abandoning their posts and leaving dorms unsupervised. Id. at 2-4 Further, he alleges gang members target non-gang members. Id. Compounding the problem, Plaintiff asserts, an unspecified number of correctional officers are gang affiliated and will tell gang members about complaints made by non-gang members. Id. at 4. After Plaintiff was placed in Tier-II segregation in J-1, a guard allowed two inmates from J-2 to enter the unit. Id. at 3. They then joined other inmates housed in J-2 in stabbing an inmate assigned to a single-person cell. Id.; Pl.'s Dep. 16:21-23, 60:6-8.
Defendants argue Plaintiff has failed to satisfy the first two elements of the failure- to-protect standard. First, they contend he has failed to demonstrate an objectively substantial risk of serious harm. Defs.' Br. in Supp. of Mot. for Summ. J. 14-18, ECF No. 21-2. They maintain that despite the three assaults, Plaintiff cannot show an individualized risk because none of the attacks were preceded by threats, Plaintiff was moved to a different dormitory after each attack, and each attack involved a different group of inmates. Id. at 14. They also assert his reports of "isolated incidents over a multi-year period . . . do not rise to the level of the constant, flagrant and rampant violence required" to show an environmental risk. Id. at 16. They point to numerous steps taken by MSP to curb violence. Id. at 16-17. Finally, they note Plaintiff is in a single-person cell in segregation and faces no imminent harm. Id. at 17-18. Second, Defendants argue Plaintiff has failed to satisfy the second element of his failure-to-protect claim because the evidence shows they were not subjectively aware of a risk to Plaintiff and, even if they were, they responded reasonably. Id. at 18-20.
The Court concludes that even assuming Plaintiff has demonstrated an objectively serious risk of harm, the evidence shows Defendants were not deliberately indifferent to it. By Plaintiff's own admission, each of the attacks was committed by different groups of inmates, and following each assault, he was moved to a different dorm. Plaintiff has not presented evidence of an organized attempt to specifically target him on a facility-wide basis. While Plaintiff appears to believe he should have been moved to a dorm for better-behaved inmates, the evidence shows—again, by his own admission—that he was not a better-behaved inmate.
In addition to the three attacks against him, Plaintiff has pointed the Court to only one other specific attack against an inmate—a January 1, 2020, attack on another inmate in Tier-II segregation. Pl.'s Mot. for Protective Custody 2, ECF No. 16. Therefore, it does not appear he has shown "generalized conditions of dangerousness" sufficient to establish the substantial risk of serious harm component of a failure-to-protect claim. See Wilson v. Danforth, No. CV 316-040, 2019 WL 3977957, at *8 (S.D. Ga. June 27, 2019), recommendation adopted by 2019 WL 3987753 (S.D. Ga. Aug. 22, 2019) (citing Bugge v. Roberts, 430 F. App'x 753, 758 (11th Cir. 2011)); see also Marbury v. Warden, 936 F.3d 1227, 1234-35 (11th Cir. 2019) (per curiam) (concluding fifteen inmate stabbings over six years failed to show deliberate indifference based on "generalized risk"); Harrison v. Culliver, 746 F.3d 1288, 1300 (11th Cir. 2014) (finding thirty-three incidents involving weapons over roughly three-year period insufficient to establish substantial risk of serious harm).
In his deposition, Plaintiff admitted that he was not placed in what he deemed a non-gang unit due to his "institutional record" and because he had not "been the best person." Pl.'s Dep. 15:10-14.
Plaintiff also argues he should have been placed in protective custody, but when he verbally requested it following the March 2019 attack, he was told MSP did not "do protective custody." Pl.'s Mot. for Protective Custody 2-5; Pl.'s Dep. 60:24-61:21, 62:15-23, 94:8-14, 96:2-4. Warden Perry responds that protective custody is available at MSP, but that it is not afforded simply due to a general fear of gangs because gang members are present throughout the facility. Perry Decl. ¶ 33. Instead, it is afforded only when there is an identifiable, specific threat. Id. ¶¶ 32-34. However, even assuming Plaintiff was not given an option of protective custody, his removal from G-building to D-building following the March 2019 attack was an objectively reasonable response in the absence of specific evidence of a threat posed by inmates in D-building.
Finally, Defendants have presented evidence of MSP's efforts to address gang violence and prison violence in general. Perry Decl. ¶¶ 20-31. Plaintiff has not challenged this evidence, and though he alleges in his motion for protective custody that staff members abandon their posts, he has not pointed to evidence in the record to show Defendants were aware of this problem or indifferent to it. Pl.'s Mot. for Protective Custody 2-4.
During his deposition and in his motion for protective custody, Plaintiff alleges Defendant Perry endangered his safety by calling him a "snitch" in front of other inmates in J-1 while investigating the stabbing of the Tier-II inmate. Pl.'s Mot. for Protective Custody 4; Pl.'s Dep. 17:17-18, 141:10-13, 150:1-4. According to Plaintiff, however, Defendant Perry made this statement in response to Plaintiff's own declaration that the stabbing showed why he filed suit against Perry, namely to "segregate gangs from inmates who are not gang members." Pl.'s Mot. for Protective Custody 4. Hence, Plaintiff's own statement identified gang members as responsible for prison violence. Further, Plaintiff has not alleged he received any threats as a result of Perry's comment. Finally, regardless of Perry's alleged statement, Plaintiff has remained in Tier-II segregation, which provides the same housing as an offender in protective custody. Perry Decl. ¶ 36; Sales Decl. ¶ 5.
Warden Perry denies making the comment. Perry Decl. ¶ 38.
In summary, even assuming Plaintiff could establish a substantial risk of serious harm, he has failed to present sufficient evidence to show Defendants were deliberately indifferent to that risk. The Court, therefore, RECOMMENDS their motion for summary judgment be GRANTED.
II. Plaintiff's Motion for Protective Custody
After his deposition, Plaintiff moved for protective custody, citing what he contends is the general lack of security at the prison and the stabbing of the Tier-II inmate. Pl.'s Mot. for Protective Custody 2-5. Because the Court recommends that Defendants be granted summary judgment, it RECOMMENDS this motion be DENIED AS MOOT. Further, an inmate does not have a constitutional right to protective custody simply because he requests it. Ogles v. Trimble, No. 5:15-cv-54-MTT, 2016 WL 491848, at *5 (M.D. Ga. Jan. 5, 2016) recommendation adopted by 2016 WL 498255 (M.D. Ga. Feb. 8, 2016). "The decision to place a prisoner into protective custody is one that would 'arise in the day-to-day operation of a corrections facility [that is] not susceptible of easy solutions.' Normally, courts must defer to the 'professional expertise of corrections officials' regarding such administrative determinations." Jolly v. Van Peavy, No. 5:12-cv-241-MTT, 2012 WL 4829269, at *3 (M.D. Ga. Aug. 30, 2012) recommendation adopted by 2012 WL 4829515 (M.D. Ga. Oct. 10, 2012) (quoting Bell v. Wolfish, 441 U.S. 520, at 547-48 (1979)) (granting dismissal of claim based on failure to place detainee in protective custody).
Warden Perry avers prison officials consider various factors in deciding whether to grant protective custody, including the specificity of threats. Perry Decl. ¶¶ 32-36. A request based solely on a general fear of gang members is not likely to warrant protective custody because gang members are present in all MSP housing units. Id. ¶ 33. He states that Plaintiff's request for protective custody will be considered following his completion of the Tier-II program. Id. ¶ 36. Further, since the third attack, Plaintiff has remained in segregation where he has his own cell. Id.; Pl.'s Dep. 126:1-127:5. Offenders granted protective custody are similarly held in segregation cells. Perry Decl. ¶ 36; Sales Decl. ¶ 5.
CONCLUSION
For the foregoing reasons, it is recommended that Defendants' motion for summary judgment (ECF No. 21) be granted and Plaintiff's motion for protective custody (ECF No. 16) be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 3rd day of June, 2020.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE